Birmingham Ry. Light & Power Co. v. Bennett , 144 Ala. 369 ( 1905 )

ANDERSON, J.

The second count of the complaint charges wanton negligence against ‘defendant’s agents or servants, or some of them, in charge or control of 'said car; * * * that said servants or agents, or some of them, knowing that plaintiff was in the act of disembarking .from said car, and knowing that to start said car suddenly while plaintiff was in the act of disembarking therefrom wo-uld likely seriously injure plaintiff, yet «ai.d servants or agents, or some of them, in charge or control of said car wantonly started the same suddenly.” It was therefore insufficient, since it does not aver that all of the agents or servants knew of the plaintiff’s position, or that the ones who started the car or caused it to be started knew that the plaintiff was disembarking. It might be that some of them knew that the plaintiff was about to alight from the car, yet the defendant could not be responsible under a claim of wantonness, unless the car was started or caused to be started by the agent or servant who knew the fact. Some of them may have known it, yet there is no averment that the act complained of was committed by such agent or servant, and the demurrer should have been sustained.

The only point made in brief of counsel for appellant upon the ruling of the lower court on the demurrers to the third and fourth counts relates to the grounds attempting to point out vagueness and indefiniteness. Whether they are or are not, we need not decide, as the demurrers were general, and the trial court properly overruled them.

Charges 1, 2, and 5, are the affirmative charges, and the appellant contends should have been given, because of a variance, in that the complaint avers the “South Ensley” line, and the proof showed the “North Ensley line. As this case must be reversed, we need not determine this question, as there need be no variance on the next trial.

The judgment of the city court is reversed, and the cause remanded.

Reversed and remanded.

Haralson, Tyson and Simpson, JJ., concur.