Gordon v. Tennessee Coal, Iron & Railway Co.

ANDERSON, J. While it has been repeatedly held by this court that a complaint need not define the quo modo, or specify the particular acts of diligence omitted, it has never been held that a complaint is good which does not set up facts from which a duty springs, or which fails to aver a responsibility, on the part of the defendant, for the negligence charged. There is no averment that the defendant was operating the cars in question, or that the negligence of its servants, complained of, was in and about the operation of defendant’s cars. There is no averment that the cars were run upon or against the plaintiff through the negligence of defendant’s servants in operating same, or that its servants wantonly or intentionally ran the cars over or upon him. The servants may have negligently caused the plaintiff’s injury in some way other than by the operation of the cars. There is nothing in the complaint to indicate that the negligence charged was in and about the operating of the cars, or that the defendant, was operating the cars by or through its servants when the plaintiff was injured. The only case cited by appellant, So. R. R. v. Hobbs, 151 Ala. 335, 43 South. 844, does not support the sufficiency of the present complaint. The complaint, which was held good in said case, alleged that the injuries were caused by and were the proximate result of the negligence' of' defendant’s servants in running said engine. The trial court did not err in sustaining the demurrer to counts 1 and 2 of the complaint, and the judgment of the city court is affirmed. Affirmed. Dowdell, C. J., and Sayre and Evans, JJ., concur.