Birmingham Railway, Light & Power Co. v. Johnson

MAYFIELD, J. — Count 2 of the complaint was a good and sufficient count to charge wantonness or willfulness under the repeated rulings of this court. The count does not attempt to set out the particular acts, nor the omissions of the particular acts, which constitute the wantonness or the willfulness, but it alleges in [355] terms the fact that the agents of the defendant “wantonly and willfully ran a car upon and against the plaintiff,” thus alleging a direct trespass by the agents. There is no contention that other parts of the count sufficiently showed that the defendant corporation was liable in damages for the wanton and willful act complained of. It has been repeatedly held by this court that counts claiming damages for wanton or willful acts are sufficient when they allege that the injury was wantonly or willfully inflicted by running a train, car, or engine against plaintiff, and it is not essential that they set out the evidence necessary to show that the given act was wanton or willful. It has been held that counts may allege that the injury was wantonly or willfully inflicted. In this case the allegation was that it was wantonly and willfully inflicted. — Southern Railway Co. v. Weatherlow, 153 Ala. 171, 44 South. 1019; Martin’s Case, 117 Ala. 367, 23 South. 231; Burgess’ Case, 114 Ala. 587, 22 South. 169; Southern Railway Co. v. Hyde, infra, 61 South. 77. The count does not attempt to allege two causes of action in the alternative or disjunctive, as is contended by appellant. It attempts to set up only one cause of action, and alleges that the injury complained of was wantonly and willfully inflicted. Only one act is complained of — running a car over or against plaintiff. The complaint merely alleges that this was done wantonly and willfully, and that plaintiff’s injuries were proximately caused by reason of this wanton or willful act. Whether the court erred in sustaining demurrers to the defendant’s pleas 3 and 4, in so far as they were intended as answers to the counts claiming on simple negligence, we need not decide, because demurrers were overruled to other pleas which set up the same defense. [356] Plea 3 alleges in express terms that the negligence of plaintiff proximately contributed to his own injury, the injury complained of, in that he attempted to cross the defendant’s railroad track on which the car that struck Mm was approaching, and in dangerous proximity to him, and made such attempt without looking for cars which might be approaching such place on such track, and that he received his alleged injuries while making such attempt. The fourth plea is the same as the third, except that it alleges that the plaintiff so attempted to cross the track without listening for cars which might be approaching. It affirmatively appears from this record that, if error, it was without injury, for the reason that demurrers were overruled to other pleas which set up the same identical defense attempted to be set up by these pleas. The only difference is that the adverb “negligently” was used before the verb “attempt.” So, if the defendant could prove one of these pleas, he could prove the others, and if he could not prove the one as to which the demurrer was overruled, he was not entitled to a verdict, for the act complained of must of necessity be negligent, else there is no defense. The other pleas were subject to the demurrers interposed. Affirmed. Dowdell, C. J., and Anderson and de Graeeenried, JJ., concur.