Southern Railway Co. v. Yancey

TYSON, J. Counts one and eleven of the complaint are in trespass and not in case. They count upon the willful and wanton, act of defendant corporation, and not upon the wrongs committed by its servants. Their averments are not supported by evidence showing that the injury complained of was inflicted by the servants of defendant in charge of the train that struck plaintiff, even if it be assumed that their acts were willful or wanton. Written charges requested by defendant that the1 jury cannot find a verdict for plaintiff under these' counts should, therefore, have been given. — Sou. Bell Tel. Co. v. Francis, 109 Ala. 224; City Delivery Co. v. Henry, 34 So. Rep. 389. Counts 10, 12 and 13 each count upon the willful or wanton acts of the agents or servants of defendant, as distinguished from defendant's acts, and are, therefore, in case. Gases cited supra. Contributory negligence is obviously no defense to these counts. And if relied upon as a defense should be eliminated by demurrer. There are also errors assigned by plaintiff as upon a cross appeal. These assignments are predicated solely upon the refusal of certain written charges, requested by him. These charges, while shown by the record, do' not appear in the bill of exceptions; the action of the court [250] in refusing them cannot be reviewed.- — Alabama Construction Co. v. Wagon, 137 Ala. 388. It follows, therefore, that plaintiff takes nothing by his appeal. Reversed and remanded.