Southern Railway Co. v. Weatherlow , 153 Ala. 171 ( 1907 )

DOWDELL, J.

— The complaint as amended contained eight counts. All of these counts, except the fourth and seventh, were eliminated on rulings by the court favorable to the appellant. The fourth count was not subject to demurrer upon the ground insisted on by counsel for appellant in their brief. This count avers in terms that the servants of the defendant “recklessly and wantonly or intentionally” inflicted the injury complained of. It was not necessary to the sufficiency of the court that it should particularize in what the wantonness or willfulness consisted. Nor was it rendered bad by the averment being in the alternative as to the charge of wantonness or willfulness. Such counts have heretofore been held sufficient by. this court. — }Memphis & Charleston B. B. v. Martin, 117 Ala. 367, 23 South. 231; A. C. S. B. B. Co. v. Burgess, 114 Ala. 587, 22 South. 169. And other cases might be cited.-

The seventh count, which was intended by the pleader as being one for wanton injury and so treated and considered by the trial court in its rulings, does not directly and in terms charge that the injury was wantonly inflicted, as did the first count, but undertakes to state the facts relied on as constituting wantonness, and in so doing falls short in averments necessary to constitute a good count for wanton injury. The charge is, not that the injury was wantonly inflicted, but that the defendant’s servants “wantonly and recklessly propelled its said engine and tender on its track over a certain public crossing or street,” etc. It omits to charge knowledge on the part of the defendant’s servants of the conditions and surroundings existing at the time and place, and a consciousness on their part that such conduct would likely or probably result in injury. The facts stated constituted the count nothing more than a count in simple negligence. — Lee’s Case, 92 Ala. 262, 9 South. 230; Anchor’s Case, 114 Ala. 492, 22 South. 279, 62 Am. St. Rep. 116; M. & G. R. R. Co. v. Marlin, 117 Ala. 367, 23 South. 231; L. & N. R. R. Co. v. Brown, 121 Ala. 221, 25 South. 609; L. & N. R. R. Co. v. Mitchell, 134 Ala. 261, 32 South. 735. Count 7, being one in simple negligence, was open to the defense of contributory negligence; and the court, therefore, committed error in sustaining plaintiff’s demurrer to the defendant’s pleas .3 and 4, addressed to this count, setting up that defense.

There was no error in permitting the witness Bridges to testify, against defendant’s objection, whether “many” or a “few” people used the particular crossing. It was in the nature of the statement of a collective fact, and not a conclusion of the witness. It was open for the defendant to inquire on cross-examination what constituted “few” or “many.” Nor was there any error in admitting in evidence, against the objection of the defendant on the grounds stated, the code of municipal ordinances of the city of Tuscumbia as to the particular ordinance. The code purported on its face to be a code of ordinances or by-laws of such municipal corporation. —Code 1896, § 1822.

My brothers are of the opinion that the evidence sought to he elicited from the witness Palmer was properly excluded, for the reason that the subject was not one calling for expert evidence, and I do not care to dissent from their views, and therefore yield my assent.

The defendant requested a number of charges in writing, which were refused by the court. While the refusal as to each is assigned as error, all of the assignments are not insisted on in brief, under our view'of what amounts to insistence in argument. Some of the changes requested are with reference to the seventh count as being a wanton count, and since, under our view, this count is nothing more than a count in simple negligence, these charges become inapt, and we will not, therefore, consider them.

Under all the evidence, and the inferences deducible therefrom, the question of wanton injury was one for the jury, and the general affirmative charge could not, therefore, be given for the defendant. Moreover, the seventh count being for simple negligence, and there being no plea of contributory negligence in as to this count, the general charge, under the evidence in this case, could not properly be given. Under our ruling other questions noAV presented may not arise on another trial. Besides, what we have said will, Ave think, prove a sufficient guide.

For the errors indicated, the judgment is reversed, and the cause remanded.

Beversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur.