Bradley v. Louisville & Nashville R. R.

SIMPSON, J. — This was an action for damages for peisonal injuries, claimed to have been suffered by the plaintiff (appellant) from being struck by an engine of defendants. Demurrers were sustained to the second and third counts of the complaint, and the trial was on the first count, Avhicli charged simple negligence, and the fourth and fifth counts, charging willful and wanton conduct; the pleas being the general issue and contributory negligence in short by consent. It is not necessary to consider Avliether there Avas any .error in the sustaining of the demurrers to the second and third counts, as the fourth and fifth charged willful, wanton, and reckless conduct on the part of the defendant, and under these counts the plaintiff had the benefit of all evidence which could have been produced in support of said second and third counts, so that, if there Avas error, it was error without injury. A general averment of Avantonness or willfulness is sufficient to let in any proof on that subject. — Foshee’s Case, 125 Ala. 226, 27 South. 1006. The plaintiff’s own testimony shows contributory negligence, and there was not any testimony to sustain the count charging Avillful or wanton and reckless conduct. Consequently there Avas no error in the giving of the general charge in favor of the defendant, nor in the refusal to give the same for the plaintiff. The judgment of the court is affirmed. Tyson, C. J., and Haralson and Denson, JJ., concur.