Mobile Light & Railroad v. Bell

ANDERSON, J. — The negligence charged in the second count of the complaint Avas the act of the conductor in signaling the motorman to go ahead while the plaintiff was on the sideboard or step preparatory to alighting. The proximate cause of the injury is aA^erred as being due to the fact that the motorman, after being so signaled, caused the car to go ahead at increased speed “Avith a sudden jerk.” The complaint does not aver that the conductor signaled the motorman to start or increase the speed of the car Avith a sudden jerk. Therefore the order of the conductor, even if negligently given, is not charged as the proximate cause of the fall. On the other hand, the mere charge that the motorman increased the speed of the car with a sudden jerk does not impute negligence to him. The jerk may not have been due to the negligence of the motorman; but, if it was, it is not so charged. Moreover, there is no averment that the motorman knew of the plaintiff’s position on [94] the car when he increased the speed and caused the jerk. It is not every increase of speed or sudden jerk of a car that amounts to negligence. The conductor may have been guilty of negligence in signaling the motorman to go ahead; but his act in giving said signal is not charged as the proximate cause of the injury. Nor does the complaint charge that the act or means which was the proximate cause of the injury was negligently done or produced. The second count was bad, and was subject to the fourth ground of demurrer interposed thereto, and the trial court erred in not sustaining the same. — Crowley v. West End, 149 Ala. 613, 43 South. 359; Western R. R. v. Mutch, 97 Ala. 194, 11 South. 894, 21 L. R. A. 316, 38 Am. St. Rep. 179. If it was the purpose of the defendant, by its plea of the statute of limitations of one year to the third count, to raise the question as to whether the cause of action as alleged in said amended count was within the lis pen-dens of the original complaint, then the sustaining of the demurrer to said plea was clearly without injury; and this for the obvious reason that it is apparent, from an examination of the amended count and' those of the original complaint, that the matters complained of in each relate to the same cause of action, and it was in no sense a departure. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J.; and Simpson and Denson. JJ., concur.