Louisville & Nashville R. R. Calvert , 170 Ala. 565 ( 1910 )

SIMPSON, J.

This action is by the appellant for damages resulting from personal injury received by plaintiff’s being struck by an engine of defendant’s at a public road crossing.

The second count of the complaint was not subject to the cause of demurrer, “that it does not allege facts showing plaintiff’s place at or upon said track to be dangerous.” As will be seen by the count set out in the statement by the reporter, it alleges that plaintiff was lawfully crossing said railroad at a public road crossing, “and was in a place of danger upon or near said track.” “This averment shows that defendant was under a duty to keep a lookout for her at the time and place of the collision, and to exercise care in conservation of her safety,” and the general allegation is sufficient.—Cen. of Georgia Railway Co. v. Foshee, 125 Ala. 200, 217, 27 South. 1006; Armstrong, Adm'r, v. Montgomery St. Ry., 123 Ala. 233, 244, 26 South. 349; Postal Tel. Co. v. Jones, 133 Ala. 217, 225, 32 South. 500. It is the opinion of the writer, in which Anderson and McClellan, JJ., concur, that said count, however, is subject to the third cause of demurrer set out. While subsequent negligence might be proved under a count alleging negligence in general terms, yet inasmuch as said count undertakes to state the particulars constituting subsequent negligence, they should be so stated as to constitute subsequent negligence.

The clause referred to cannot be considered as redundant, for it is the gist of the count, and to declare that the count is not subject to the demurrer, would, in effect, say to the jury that if that count is proven the defendant is guilty of subsequent negligence. The count attempts to set up subsequent negligence which is an additional cause of liability and not merely a question of the degree of wrong. Therefore the cases on counts alleging willful and intentional conduct are not analogous. This court has decided that a similar count is demurrable.—Anniston Elec. & Gas. Co. v. Rosen, 159 Ala. 195, 48 South. 798, 803; L. & N. R. R. Co. v. Young, 153 Ala. 232, 45 South. 238-240, 16 L. R. A. (N. S.) 301.

The cases cited in regard to error in sustaining demurrers being errors without injury are not analogous. When the demurrer was overruled, it was equivalent to instructing the jury that if "that count was proved the plaintiff was entitled to recover. Dowdell, G. J., and Mayfield, Sayre, and Evans, JJ., think that said count is sufficient as a count for simple initial negligence.

The words, “apparent to the servants or agents of defendant” are not the equivalent of alleging that said servants knew of the peril of the plaintiff. The Century Dictionary defines “apparent,” as “exposed to sense of sight; open to view; visible to the eye; within the range of vision.”

Under the decisions of this court, plea 3 does not sufficiently set out the facts constituting contributory negligence, but merely the conclusion of the pleader that the plaintiff’s act was negligent. — 5 Mayfield’s Dig. p. 718, §§ 103, 104. Hence, there was no error in sustaining the demurrer to said third plea.

That part of the oral charge excepted to is erroneous. The charge purports to define, • “willful, wanton, or intentional negligence.” It is evident that, in order to be correct, the constituents therein set forth must be properly applied to each of the alternatives. That is, the facts therein postulated must constitute willful conduct, also wanton conduct and intentional conduct. The mere fact that the argument in the brief does not emphasize this particular defect does not bar this court from considering the error assigned.

There is a distinction between willful and intentional conduct and wanton conduct, and whether the charge describes wanton conduct or not (which we do not decide) it does not describe either of the others.—Birmingham Ry. & Elec. Co. v. Bowers, 110 Ala. 328, 331, 20 South. 345; L. & N. R. R. Co. v. Anchors, Adm’r, 114 Ala. 492, 499, 22 South. 279, 62 Am. St. Rep. 116; Ala. Gt. So. R. R. Co. v. Burgess, 116 Ala 509, 513, 515, 22 South. 913; Ala. Gt. So. R. R. Co. v. Moorer, 116 Ala. 642, 645, 22 South. 900; Memphis & C. R. Co. v. Martin, Adm'r, 117 Ala. 367, 382, 23 South. 231; Birmingham Ry., Lt. & P. Co. v. Landrum, 153 Ala. 194, 204, 205, 45 South. 198, 127 Am. St. Rep. 25; Southern Ry. Co. v. Bunt, 131 Ala. 591, 594, 595, 32 South. 507; Birmingham Ry. & Elec. Co. v. Pinckard, 124 Ala. 372, 374, 26 South. 880; Birmingham Ry., Lt. & P. Co. v. Williams, 158 Ala. 381, 390, 48 South 93.

There was no error in giving charge 1, at the request of the plaintiff. There was no evidence tending to show that the plaintiff was controlling the driving of the horse, or was in any way responsible for its movements. The fact that she testified that her father’s hearing was not perfect did not place the responsibility on her to check the horse. While there was evidence tending to show that both she and her father would have seen the train if they had looked, yet the evidence did not show that she heard anything. Besides, there is no allegation that she was guilty of contributory negligence, in not informing her father, who was driving, of the approaching train.—Birmingham Railway & Elec. Co. v. Baker, 132 Ala. 507, 515, 516, 31 South. 618.

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

Reversed and remanded.

All the Justices concur in the result.