Woodward Iron Co. v. Finley , 189 Ala. 634 ( 1914 )

McCLELLAN, J.

Under the authority of Sou. Ry. Co. v. Weatherlow, 153 Ala. 171, 176, 44 South. 1019; Neyman v. A. G. S. R. R. Co., 172 Ala. 606, 55 South. 509, Ann. Cas. 1913E, 232; B. R. L. & P. Co. v. Brown, 150 Ala. 327, 43 South. 342, among others cited therein, count 5 of this complaint, which the reporter will set out, was subject to the demurrer interposed. It was erroneously overruled. Wanton or intentional misconduct in doing an act is not the legal equivalent of that character of misconduct inflicting an injury upon another. This count, without averring the engineer's knowledge that plaintiff, a licensee, was on the car, alleges that the engineer “wantonly, or willfully, or intentionally wrecked and derailed said tram cars upon which plaintiff was riding into the said mine.” Obviously, this averment characterized the act, not the injury, as wanton or willful.

Doubtless this count will be amended before another trial, and, if so, the matter of the relation of Arthur Williams to the injuring agency will receive due consideration. As the count now stands, it appears to aver that the engineer was the servant of both Williams and appellant. If alleged, that must be proven; else a variance would occur.

Counts 1 and 3 contain the averment that the plaintiff was, when injured, in a place where he had a lawful right to be; this succeeding the allegation that he was on a tram car — which was then being used, and had been used, to haul employees of the independent contractor in and out of the ore mine — going to his work. It thus appears that the pleader assumed the unnecessary burden of vindicating plaintiff’s right to be on the tram car at the time he was injured. Under the general issue pleaded by the Woodward Iron Company, the subject-matter of pleas 2 to.5, inclusive,— which asserted an effective rule, against employees riding on the cars, as the basis for the contributory negligence charged therein — was admissible to refute the plaintiff’s right to be where he was when injured. No prejudicial error to appellant company attended the court’s action in sustaining the demurrer to these pleas.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

Anderson, C. J. and Mayfield and de G-raffenried, JJ., concur.