Russell v. Huntsville Railway, Light & Power Co. , 137 Ala. 627 ( 1902 )

SHARPE, J.

In the complaint as it stood when the demurrer was ruled on, the first count averred as the wrong complained of, a specific act of negligence, namely, that, the defendant while operating .its railway, through its agents, did carelessly and negligently run over and kill “plaintiff’s dog.” • It was not subject to the demurrer. — -See Western R. Co. v. Lazarus, 88 Ala. 453; Stanton v. L. & N. R. R. Co., 91 Ala. 382. Likewise, the second count in the complaint as it then stood was free from the objections taken by the demurrer. It declared not on negligence, but on what was conjunctively averred to have been a reckless, wanton and willful running over and killing of the. animal.

Before the jury the cause was tried alone on a. plea in abatement which averred three facts, intended apparently to show that the cause did not originate in a. court having jurisdiction, viz.: That “John W. Wall was and is a notary public and ex officio justice of the peace, for the First ward of the city of Huntsville, Madison county, Alabama, and that said dog was injured and killed outside of said First ward of the city of Huntsville, and defendant’s residence is outside of said First ward of city of Huntsville.” The first of these alleged facts was within the judicial knowledge and the 'Court was not bound to receive proof respecting it. — White v. Rankin & Co., 90 Ala. 541; McCarver v. Herzberg, 20 Ala. 523; Cary v. State, 76 Ala, 78. It was proven without conflict in evidence that the anima,1 was killed outside of the. First ward, but about the third fact,,- viz.: whether defendant’s residence was outside the First ward, the evidence was such that different inferences might have been drawn from it. The averment of that fact made. it. material whether it would otherwise have been so or not, and a finding of the truth of that averment was essential to a proper finding for the defendant., on that plea. Therefore, the court erred in refusing to give charge 3 requested by the plaintiff. Plaintiff was not entitled to have given either charge 1 or 2. The latter charge had no bearing on the issue tried, since the same involved merely the question of whether the facts averred were true.

The judgment will be reversed and the cause remanded.