Western Ry. of Alabama v. Mitchell

• Decision Date: 14 June 1906
• Citation: 148 Ala. 35,41 So. 427
• Parties: WESTERN RY. OF ALABAMA v. MITCHELL.
• Court: Alabama Supreme Court

41 So. 427

148 Ala. 35

WESTERN RY. OF ALABAMA v. MITCHELL.

Supreme Court of Alabama

June 14, 1906

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

"To be officially reported."

Action by John D. Mitchell against the Western Railway of Alabama. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action for damages, brought by appellee against appellant for the negligent killing of two mules. The complaint contains five counts, and is in the following language "(1) Plaintiff claims of the defendant $500 as damages for the negligent killing, by an engine, locomotive, or car of the defendant, of two mules, property of the plaintiff on, to wit, May 1, 1903, at a place on the track of the defendant between Scott and Merritt Station, about one-half mile from said Scott Station, in Montgomery county, Ala. (2) Plaintiff further claims of the defendant $500 as damages for that the defendant, through its agents or servants in charge of one of its engines, on, to wit, April 21, 1903, at a place on the track of defendant between Scott and Merritt Station, in Montgomery county, Ala., negligently ran said engine against two mules of the plaintiffs, thereby causing their death, to the damage of plaintiff as aforesaid. (3) Plaintiff further claims of the defendant the sum of $500 as damages for the killing of two mules, the property of the plaintiff, by the negligence of the defendant in running a train of cars or locomotive on the track of defendant, on, to wit, April 21, 1903, at a place between Scott and Merritt Station, in Montgomery county, Ala. (4) Plaintiff further claims of the defendant the sum of $500 as damages, and plaintiff avers that the defendant was on, to wit, April 21 1903, engaged in the operation of a railroad and of locomotives and cars thereon in the county of Montgomery, and one of the agents, servant, or employés of the defendant in charge of a locomotive so negligently operated such locomotive on said road between Scott and Merritt Station, in said county, and by reason thereof then and there ran said locomotive against two mules, the property of the plaintiff thereby causing the death of said mules, to the damage of plaintiff as aforesaid. (5) Plaintiff further claims of the defendant $500 as damages, for that the defendant on, to wit, April 21, 1903, was engaged in operating a railroad in the county of Montgomery, Ala., on which said road it operated engines, locomotives, and cars; that on, to wit, said day and date, in the county of Montgomery, Ala., and at a place on the track of the defendant between Scott and Merritt Station, in said county, it so negligently conducted its said business that a locomotive of the defendant ran against two mules, the property of the plaintiff, and caused their death, to the damage of the plaintiff as aforesaid."

The defendants interposed the following demurrers to these counts. To the first count: "Because it fails to show with sufficient certainty who, if any one, was guilty of the alleged negligence; because it assumes that an engine, locomotive, or car could of itself be negligent; because it fails to show whether it was an engine, locomotive, or car that was negligent." To the second count: "Because it fails to show that the said agent, servant, or employé who is alleged to have been guilty of negligence was at the time acting within the scope or range of his employment." To counts 1 and 2 separately: "Because they fail to show negligence on the part of any one for whom the defendant would be liable." To the third count: "Because it fails to show negligence on the part of any one for whose act the defendant would be liable; because it fails to show with sufficient certainty that the defendant was guilty of any negligence; because it assumes as a matter of law that the running of a train of cars or locomotives is negligence." To the fourth count: "Because it fails to aver with sufficient certainty what servants or employés of the defendant are guilty of negligence; because it fails to aver with sufficient certainty that said servants or employes were guilty of negligence; because it fails to aver with sufficient certainty where said injury occurred." To count 5: "Because it fails to show or aver what engine, locomotive, or car, or what train of cars, inflicted the injury complained of; because it fails to show or aver by whom said engine, locomotive, or car was operated at the time of the injury, but alleges that it was done by the defendant, which is alleged to be a corporation, and could not, without the assistance of some person, operate said locomotive, engine, or car; because it fails to show with sufficient certainty that the alleged negligence proximately contributed to or caused the injury complained of." The demurrers to count 1 were sustained, and demurrers to counts 2, 3, 4, and 5 were overruled.

The defendant filed the following pleas: (1) The general issue. (2) That the engineer of said train was keeping a proper lookout and discovered the animals as soon as he could; that after he discovered them he used all the means known to skillful engineers, such as reversing the engine and applying the brakes, to prevent injuring them. (3) "And for further answer to the complaint, the defendant says that the engineer in charge of the train which killed the plaintiff's animals was keeping a diligent lookout ahead of his engine, and discovered said animals as soon as it was practicable for him to do so, and as soon as he perceived them on the track he used all the means within his power known to skillful engineers, such as applying the brakes and reversing the engine, in order to stop the train." (4) That the engineer in charge of the train which killed plaintiff's animals was keeping a diligent lookout ahead of his engine, and discovered said animals as soon as it was practicable for him to do so, and as soon as he perceived them on the track he sounded the cattle alarm and used all the means within his power known to skillful engineers, such as applying brakes and reversing his engine, in order to stop the train. (5) That said animals came suddenly upon defendant's railroad track upon the left hand thereof, and so close to the engine or train that the engineer could not stop in time to prevent injuring them.

Plaintiff demurred to plea 2 as follows: "It presents nothing but the general issue. It fails to aver that the engine or locomotive which killed the mules was properly equipped. It fails to aver that the engineer sounded the cattle alarm or gave other warning of his approach before the accident. It fails to aver that he did his duty after the discovery of danger to the mules. It fails to aver that the engineer was keeping a proper lookout. It fails to aver that the engineer did anything to frighten the mules off the track. It fails to deny negligence on the part of defendant's agents servants, or employés in charge of the engine. It fails to aver that the engineer used due diligence to discover the peril of the mules. It fails to aver that the engineer was keeping diligent and proper lookout for the animals." To the third, fourth, and fifth pleas of defendant plaintiff demurred, and assigned separately all the grounds assigned to plea 2, and the following additional grounds: "It fails to aver that the engine was properly equipped. It fails to aver that defendant's engineer sounded the cattle alarm or gave other warning of his approach. It fails to aver that he was running the train at such a rate of speed that he could have stopped the same in time to prevent injury when the animals were first discovered on the track. It fails to aver that the mules suddenly ran upon the track in front of the engine. It shows on its face that the mules...