Verner v. Alabama Great Southern Railroad , 103 Ala. 574 ( 1893 )

COLEMAN, J.

The action was brought to recover damages for personal injuries inflicted upon plaintiff’s intestate, which caused his death. The court sustained a demurrer to the complaint, and upon plaintiff’s refusing to amend or plead further, rendered judgment for the defendant. The appeal is prosecuted from the ruling of the court sustaining the demurrer. The appellant contends there are two counts in the complaint. The pleadings indicate that at the hearing, it was considered as containing but one count; and we are of opinion this was the correct view. After placing the amount of damages claimed at twenty thousand dollars the remainder of the complaint consists in statements of facts and circumstances under which the injury arose, and the several averments of different causes of action against the defendant. Whether regarded as containing one count or two counts, the complaint is defective and subject to demurrer. To divide the complaint into two counts, as claimed by appellant, then each count contains averments of willful injury, and of simple negligence. In the first, it is averred, that the agents of the defendant, operating the train “saw” deceased on the track in time to have stopped the train, and “knowingly and willfully and maliciously run said train on plaintiff’s said intestate.” In the same count it is averred that defendant’s agents failed to use “due diligence after they discovered plaintiff’s intestate on the track, or after they ought to have discovered him. ” In the same count it is averred that the defendants were negligent in “running the train at a reckless rate of speed without proper and sufficient headlights on said engine,” and such negligence was the cause of the injury. We have stated sufficient from the first count to show that the plaintiff has joined in the same count, a charge of willful injury and simple negligence.

We will now consider the remainder of the complaint, which, according to the appellant’s contention, constitutes ' a second count. It shows that plaintiff’s intestate was a trespasser on defendant’s track. Although wrongfully ejected from the car, this wrong did not give plaintiff’s intestate the right to use the Road for travel. One trespass can never justify another. If the plaintiff had showed, that after being ejected from the car there was no safe and convenient route from the point of his ejection, except to walk on the track, the deceased would have been excusable for using it until he reached a point where he could leave the track. The proposition asserted in the complaint, and insisted on in the brief, is, because deceased was ejected from the car, this gave him the right to pursue his journey to the next station on the track. The proposition is wholly .'untenable. By his own showing, plaintiff’s intestate was a trespasser at the time of his injury. This complaint then avers that the train came up behind him, without warning, and ran over him ‘ ‘ after discovering the perilous position of plaintiff’s intestate, or after they ought to have discovered it by the exercise of reasonable diligence.”

The defendant owed no duty to be on the lookout for plaintiff’s intestate at the time and place he was injured. Unless defendant’s agents were guilty of willful wrong, or such wanton negligence as to be its equivalent, plaintiff could not recover under the averments of the second count.

Considering the complaint as containing but one count, the criticisms placed upon it are more apparent.

The questions presented by the demurrer are fully discussed in case of L. & N. R. R. v. Markee, ante, p. 160.

Affirmed.