Atlantic Coast Line R. Co. v. Thomas

The only error insisted on in brief as to the court's rulings on the pleadings is that the allegations describing plaintiff's injuries in counts 4 and 5 are not sufficient. The complaint alleges: "Her arm was broken and she was otherwise seriously injured." This was a sufficient allegation of injuries growing out of and connected with the broken arm, but would not authorize proof of other injuries not connected with the broken arm. The cases cited by appellant were not so definite.

The second count charged wantonness as the direct act of the corporation, and, while there was perhaps sufficient evidence tending to show wantonness on the part of defendant's employés, while acting within the line and scope of their employment, such is not the charge as made by count 2 of the complaint. Under the following authorities the general charge as requested by defendant should have been given as to count 2: Newberry v. Atkinson, 184 Ala. 567, 64 So. 46; B. R. L. P. Co. v. Hayes, 153 Ala. 189, 44 So. 1032; L N. R. R. v. Lacey, 17 Ala. App. 146, 82 So. 636; Ex parte L. N. R. R.,203 Ala. 328, 83 So. 52.

For the error pointed out the judgment is reversed, and the cause is remanded.

Reversed and remanded.

On Rehearing. Former opinion withdrawn. Opinion substituted. Judgment of affirmance set aside, and judgment reversed and remanded.