Birmingham Railway, Light & Power Co. v. Elmit

WALKER, P. J. The second and fourth counts of the complaint in this case followed the averments of the counts which were held to be subject to demurrer’ in the case of Birmingham Railway, Light & Power Co. v. Mildred Elmit, infra, 60 South. 981. For the reasons [660] stated in the opinion rendered in that case, it must be held that the court erred in overruling the demurrers to those counts. Neither of the other counts was subject to demurrer on the grounds assigned. The averments of the third count sufficiently show the existence of a duty on the part of the defendant’s conductor to afford the plaintiff an opportunity to get off at the place mentioned. It is true that its averments to the effect that the conductor recklessly, willfully, or wantonly failed to put the plaintiff off at that place, being in the alternative, show no more than simple negligence (Louisville & Nashville R. Co. v. Orr, Adm’r., 121 Ala. 489, 26 South. 35); but this does not render the count subject to the demurrer interposed to it, as the plaintiff could maintain an action for the simple negligence alleged. This is not such a case as the one presented in Southern Railway Co. v. Bush, 122 Ala. 470, 26 South. 168, which is referred to in this connection by the counsel for the appellant. The count in that case which was held subject to demurrer showed that the injury complained of was received by the plaintiff’s intestate while he was a trespasser on the track of the defendant railroad company. That being true, it was held that, for the plaintiff to show the existence of a cause of action against the defendant, it was incumbent upon him to show something more than simple negligence on the part of the defendant’s servants. The plaintiff here, being a passenger, was entitled to complain of the simple negligence of the defendant or its employees. Other questions presented need not be passed upon, as they are such as may not arise on another trial. Reversed and remanded.