Liverett v. Nashville, Chattanooga & St. L. Ry.

SOMERVILLE, J. — The fourth count of the complaint is deficient in failing to aver knowledge on the part of the trainmen of such conditions as rendered it likely that some. one would be upon the track at the point described, and exposed to danger in the absence of the omitted precautions. Such knowledge is the very essence of wanton or willful injury.—C. of Ga. Ry. Co. v. Foshee, 125 Ala. 201, 226, 27 South. 1006; Peters v. Southern Ry. Co., 135 Ala. 533, 33 South. 332; Southern Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927. Moreover, plaintiff had the full benefit of this issue under other counts of his complaint. There was neither error nor prejudice in sustaining the demurrer to this count. Defendant’s second plea, viz., that plaintiff’s- intestate “was a trespasser on the track at the time and place when and where he was killed,” if deficient, was impugned only by general grounds of demurrer, which were properly overruled. The fourth plea, viz., that plaintiff’s intestate, “when injured, was walking along said track, or standing on it, or sitting or lying down thereon,” is attacked on the ground that it does not appear but that defendant made no effort to prevent the injury, or that it wantonly or willfully killed the intestate because he was on the track. It is true that-the averment of the first count that defendant “so negligently conducted its said business that one of its locomotives ran over the plaintiff’s intestate is broad enough to cover subsequent negligence on the part of the engineer (C. of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 217, 27 South. 1006), and so to support a recovery therefor; nevertheless, when it appears from the complaint alone, or from the complaint and a plea combined (as here), that the intestate was a trespasser upon the defendant’s track or right of way, [115] this imposes upon the plaintiff the burden of further alleging that the defendant’s servant failed to use due diligence to avoid the injury after discovering the peril. It is sufficient to say of this plea that it is a direct traverse of the material averments of the complaint that the intestate was killed while crossing the track, or while passing along the highway at a public crossing, and was in effect a plea of the general issue, and not subject to the demurrer. The trial court properly instructed the jury that they could not find for plaintiff on the wanton counts. There was no evidence offered as to the number of the population of Boa/, or the vicinity of the crossing, nor was it shown that people crossed even at the public crossing — to say nothing of the little trail where the injury occurred, and which was nearly 200 feet from the public crossing — in such numbers and with such frequency as to render it probable that some one would be exposed to danger; and hence there was no support whatever for the charge of wanton or willful injury. Nor could it be supported in inference by the mere fact that the train was running at a speed of 30 or 35 miles an hour. The case went to the jury on the first, third, and sixth counts of the complaint, charging simple negligence. The first and sixth counts aver that the intestate was. killed while in the act of crossing the track “at or near” to a specified public crossing in the town of Boaz. The undisputed evidence shows, on the contrary, that he was-killed at a point some 150 or 200 feet from that crossing. Where the phrase “at or near” is used in pleading, not merely to identify the locus of the injury, but to fasten upon defendant certain duties owed only with, respect to the place named, then proof of injury at a place 150 or 200 feet distant, where defendant’s obligations to the public are of a materially different char [116] acter, will not support the complaint.—B. R., L. & P. Co. v. Lide, 177 Ala. 400, 58 South. 990; Pryor v. L. & N. R. R. Co., 90 Ala. 32, 8 South. 55; Central of G. Ry. Co. v. Thomas, 1 Ala. App. 267, 55 South. 443. We are therefore of the opinion that plaintiff failed to make out his case under these counts. The third count avers that the intestate was killed “while passing along the highway at a public crossing in said town of Boaz, known as the ‘Denson crossing.’ ” The variance between this averment and the proof is radical and fatal, for the reasons just above stated. It is of no consequence’ that the first count does not designate Denson’s crossing as a public crossing, since the evidence shows that it was a public crossing in fact, and intestate’s rights and defendant’s duties were not the same at the trail and at the crossing. But, pretermitting the theory of variance, the only duty owed by defendant to intestate while crossing its track at the place where he was in fact killed was not to injure him intentionally, and to use due dilligence to avoid injui’ing him after discovering his peril. The testimony of the engineer shows that intestate’s peril was not discovered at all, and this overcomes the prima facie presumption of negligence, created by the statute (Code, § 5173), where an injury is shown. In this view of the case the court might, with propriety, have given the general affirmative charge for defendant on the entire case, and it is therefore wholly unnecessary to consider the other rulings of the court which are assigned as error, since in no aspect could they affect the result. The judgment is affirmed. Anderson, C. J., and McClellan and Sayre, JJ., concur.