Rice v. Southern Railway Co.

ANDERSON, J.- — Tbe judgment entry and brief of appellant’s counsel indicate that tbe complaint consisted of 4 counts, two original ones and 3 and 4 added by way of amendment. It also appears that demurrers were sustained to counts 1 and 3 and overruled as to 2 [71] and 4. It also appears that count 2 was withdrawn by the plaintiff, and the case was tided on count 4 alone. We have searched the record in vain for counts 3 and 4, and find no counts at all in the proper place in the record, but have succeeded in finding two unnumbered counts sandwiched in on lettered pages between pages 136 and 137 in the bill of exception part of the record. These two counts are unnumbered;, but, owing to the date of filing and the fact that they appear between the summons and the return, we can only treat them as original counts 1 and 2. Count 2 was voluntarily withdrawn by the plaintiff, and there was no error in sustaining the defendant’s demurrer to count 1. “While a complaint need not define the quo modo, or specify the particular acts of diligence omitted, yet, when simple negligence constitutes the cause of action, it is incumbent upon the plaintiff to bring himself within the protection of the negligence averred by alleging such a relationship as would enable him to recover for simple negligence.” — L. & N. R. R. Co. v. Holland, 164 Ala. 73, 51 South. 365, 137 Am. St. Rep. 25; Gadsden R. R. Co. v. Julian, 133 Ala. 373, 32 South. 135; Ensley Ry. Co. v. Chewning, 93 Ala. 25, 9 South. 458. For aught that appears from count 1, the intestate Avas a trespasser, and the only duty that the defendant OAved him was not to willfully or wantonly run over him or not to negligently do so after discovering his peril, and which said averment is utterly wanting in said count 1. The case of Highland Ave. R. R. Co. v. Robbins, 124 Ala. 113, 27 South. 422, 82 Am. St. Rep. 153, cited by counsel, is not only not in conflict with this holding, but supports us in deciding that count 1 makes the intestate a trespasser. The trial court did not commit reversible error for refusing to strike so much of the answer of the defend [72] ant as was not responsive to the twelfth interrogatory. So far as we can judge, as the only count upon which the case was tried is not before us, the answer was pertinent, and whether responsive or not it should not have' been stricken. — Sullivan Timber Co. v. L. & N. R. R. Co., 163 Ala. 134, 50 South. 941, wherein the cases of First Nat. Bank v. Leland, 122 Ala. 289, 25 South. 195, and Garrison v. Glass, 139 Ala. 512, 36 South. 725, were expressly overruled. Since the record does not disclose count 4, the only one under which this case was tried, we cannot review the action of the trial court in ruling upon the evidence or in giving or refusing charges. The judgment of the circuit court is affirmed. Affirmed. All the Justices concur, except Dowdell, C. J., not sitting.