South & North Ala. Railroad v. Schafner

CLOPTON, J. The only assignment of error relates to the-overruling of a demurrer to the amended complaint. The assigned causes of demurrer are, that the complaint does not allege the time or place, when and where the injury occurred. In East Tenn., Va. & Ga. R. R. Co. v. Carloss, 77 Ala. 443, it was held, that where suit is instituted to recover for damages to live stock or cattle of any kind, by locomotives or railroad cars in this State, the complaint must, under the- statute, allege with reasonable certainty “ the time when, and the place where 568 the killing or injury:occurred.” The ruling relates to a suit brought under the statute, which is, in terms, restricted to an injury caused by locomotives or railroad cars. If the killing or injury is occasioned in any manner other than by a locomotive or cars, the statute is not applicable, and a complaint as at common law, without conforming to the requirements 'of the statute as to the averments of time and place, will be sufficient. The complaint does not allege that the mule was killed by the locomotive or cars of the defendant, and such is not a necessary implication. The demurrer was properly overruled on the causes assigned. Whether the plaintiff is entitled to recover, under the complaint as framed, if the evidence disclosed that the mule was in fact killed by the locomotive or cars, is a question not raised by the record, and which we do not decide. It does not appear from the record in what manner, or by what means, the killing occurred. Affirmed,