Simpson v. Memphis & Charleston Railroad , 66 Ala. 85 ( 1880 )

BRICKELL, O. J.

The original complaint was, doubtless, framed in view of the statute of February 3d, 1877, subjecting railroad companies to an absolute liability for injuries to stock from their trains; and if that had been a valid enactment, a clear legal liability would have been disclosed. The statute was, however, and has been so pronounced by this court, in conflict with the constitution. There is no averment in the original complaint of an intentional injury, resulting from direct immediate force. Such injuries were not within the purview of the statute; for, without it, the common law imposed a liability, absolute and unqualified. The purpose of the statute was to impose for an accidental, unintentional injuries, whether there was neglect or not, the absolute, unqualified liability which the common law imposed for intentional injuries resulting from the direct application of immediate force. The original complaint does not aver an intentional injury, resulting from immediate force : the count is upon the liability for an injury the statute was presumed to impose, whether the injury was accidental, the company being free from blame, or "whether it was the result of negligence. There being no averment of negligence, and the statute being impotent, there was no error in sustaining the demurrer to the original complaint.

The amended complaint avers, that the injury complained of was the result of negligence ; and was not, therefore, obnoxious to demurrer. It did not introduce a new cause of action, nor convert the action from trespass to case. The original complaint would not have been sufficient as a count in trespass, nor as a count for any other than a consequential injury. The amendment merely discloses that negligence of the defendant was the cause of the injury, not the intentional, immediate application of force.

Reversed and remanded.