Lloyd v. Central of Georgia Ry. Co.

.SOMERVILLE, J. Plaintiff complains of the elimination of count A of the complaint on demurrer; the argument being npt only that the demurrer was not well taken, but that the error in sustaining was prejudicial because under count 0 plaintiff’s case was limited to- defendant’s subsequent negligence, while under count A original or initial negligence might have been shown. [1] It may well be doubted if the allegation merely that the intestate was attempting to cross defendant’s track at the time of his injury is sufficient to show that he was rightfully on or near the track, and therefore was not a trespasser. The right to cross over railroads at places other than crossings cannot he denied, but the right is obviously qualified by considerations of convenience or necessity. See A. G. S. R. R. Co. v. Linn, 103 Ala. 134, 139, 15 South. 508; T. C., I. & R. Co. v. Hansford, 125 Ala. 349, 362, 28 South. 45, 82 Am. St. Rep. 241. But we need not determine that question now, for, whether he was a trespasser or not, negligence being predicated generally upon the operation of the train, and the collision occurring at a point within the corporate limits of a town, negligence might have been established without reference to the question of keeping a lookout for trespassers. Code, § 5473. [2] We think the count is free from objec *695 tlon, and that the trial court erred in sustaining the demurrer thereto. [3] The plea of contributory negligence does not show that intestate’s negligence was subsequent to' or concurrent with <the negligence charged in the complaint, and the ground of demurrer pointing out that deficiency was well taken and should have been sustained. Bryant v. A. G. S. R. R. Co., 155 Ala. 368, 375, 46 South. 484. The record contains no bill of exceptions, but the instructions to the jury which are incorporated in the record sufficiently indicate that the error in this regard was probably prejudicial to plaintiff. Rule 45, 61 South, ix; Henderson v. T. C., I. & R. Co., 190 Ala. 126, 67 South. 414. Let the judgment be reversed, and the cause remanded for further proceedings in accordance with this opinion. • Reversed and remanded. ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.