Levin v. Memphis & Charleston Railroad , 109 Ala. 332 ( 1895 )

McCLELLAN, J.

The complaint as amended con-, tained three counts. The first count attempts to charge the defendant with negligence only. The second and third charged in effect that the defendant, knowing of plaintiff’s peril, recklessly pursued a course of conduct calculated to inflict personal injuries upon him, and which did result in the infliction of the injuries for which he sues. This was to charge more than negligence : it was an averment that defendant was guilty of wantonness and willfulness. — Georgia Pacific Railway Co. v. Lee, 92 Ala. 262; Georgia Pacific Railway Co. v. Ross, 100 Ala. 490.

The first count of the complaint did not show that defendant knew that plaintiff was on and crossing along the wagon way of the bridge with a horse and buggy when it ran its train on the overhead railway across the bridge, and it did not aver facts showing that defendant was under any duty to the plaintiff not to thus cross the bridge with its train at the time and under the circum-. stances existing on the occasion of plaintiff’s injury. The third assignment of demurrer laid against this count was therefore properly sustained. — Stanton v. Louisville & Nashville R. R. Co., 91 Ala. 382; Favor v. Boston & Lowell R. R. Co., 114 Mass. 350.

The first count was not amended after demurrer sustained, and hence was not in the case at the trial. The counts which remained, and upon which the trial was had, claimed damages resulting from defendant’s wantonness or willfulness. There was no evidence of wantonness or willfulness. Conceding for the argument that the evidence tended to show negligence on the part of the defendant, this did not authorize a recovery on the case made by the complaint; and the court properly gave the affirmative charge for the defendant. — Highland Avenne & Belt Railroad Co. v. Winn, 93 Ala. 306; Birmingham Mineral Railroad Co. v. Jacobs, 92 Ala. 187; Louisville & Nashville Railroad Co. v. Markee, 103 Ala. 160. This instruction was properly given on the issue presented by the plea of “not guilty.’’ If the court erred in any of its rulings on demurrers to special pleas, the plaintiff was nob injured thereby.

No considerations occur to us why the j udgment should not be affirmed, and counsel for appellant has made no suggestions by brief or otherwise.

Affirmed.