South & North Alabama Railroad v. Hagood , 53 Ala. 647 ( 1875 )

BRICKELL, C. J.

The decision in the case of South & North Ala. R. R, v. Brown, covers all the assignments of error in this case, except those relating to the overruling-of the demurrer to the first count of the complaint. The first and second grounds of demurrer, are in substance the same, that it is not averred the injury was the result of negligence. In Mobile & Ohio R. R. Co. v. Williams, ante, p. 595, we used the following language on this point:

“The complaint or statement filed by appellee did not aver the killing of the cattle was negligent, or the result of the negligence of the appellant, its servants or agents. A demurrer to it was interposed on this specific ground, and was overruled. In this, there was error. Negligence of appellant, its servants or agents, is an essential ingredient of the right of recovery, and without an averment of it, no cause of action was disclosed. As the complaint stands, construing it as all pleadings are construed, most strongly against the pleader, the intendment would be that there was no negligence, no breach of duty, on the part of appellant; that the liability was deducible only from the fact of killing. True, evidence of the killing, would throw the burden of proving diligence on the appellant, but the right of the appellee to a recovery, still rests on the fact of a negligent injury, which must be averred.”

The demurrer was therefore well taken, and should not have been overruled. A simple allegation that the killing was negligent would have been sufficient, without averring that those operating the train when it occurred perceived, or did not perceive the oxen, or on perceiving them, that they did not use any particular means to avoid the injury. The other grounds of demurrer were not well taken, and were properly overruled.

The count seems to have been framed with a view to the statute, approved April, 23, 1873, entitled, “an act to protect the owners of stock on the line of railroads in this State.” Pamph. Acts, 1872-3, p. 124. The first section of the act provides that whenever any horse, mule, cattle, &e., may be killed or injured by the railroads in this State, it shall be the duty of three disinterested citizens along the line of the road to be selected by the section master of the section upon which the stock is killed, or injured, to appraise the value of the stock, and return the appraisement to the chief officer of the company, with the name of the owner. The second imposes on the railroad company, the duty of causing payment of the appraisement to be made, at a depot or office of the company, in the county where the injury occurred, or to pay the expenses of the owner in going to and returning from the general office of the company, for the purpose of collecting the same.

If the first section of this act is capable of any operation it is only to provide a mode by which the value of the stock injured or killed, may be ascertained by the consent of the railroad company expressed through the action of its section master, in the selection of appraisers, with the concurrence of the owner of the stock. It cannot operate to increase the liability of the company for injuries to stock, nor as compulsory on either party. When the mode of ascertaining the value is not pursued, the statute is inoperative. The averment therefore that the appellant failed to cause an appraisement of the oxen alleged to have been killed, as provided by the statute, does not cure the want of an averment of negligence.

The judgment is reversed and the cause remanded.