Alabama Great Southern Railroad v. Smith

MoCLELLAN, J. The plaintiff (appellee) was a crossing flagman where'the defendant’s (appellant’s) ‘line of railway crossed the railway line of the Louisville & Nashville Railroad Company. There was a collision between trains of the two companies, as a result of which a car of coal in the latter mentioned company’s train, which lay over the railroad crossing, was overturned on plaintiff, injuring him. According to the apt authority of the following decisions, among others, count 4, which the report of the appeal will contain, was subject to the ground of the demurrer taking the objection that the allegation of negligence was merely the conclusion of the pleader. —Neyman v. G. S. R. R. Co., 172 Ala. 606, 55 South. 509, Ann. Cas. 1913E, 232; Sou. Ry. Co. v. Weatherlow, 153 Ala. 171, 44 South. 1019; B. R., L. & P. Co. v. Brown, 150 Ala. 327, 43 South. 342; Woodward Iron Co. v. Finley, 189 Ala. 634, 66 South. 587. The averments of the count only characterizes the act or omission, “causing or permitting a collision,” as willful or wanton, and then describes the effect of the act or omission, [645] which alone is characterized as having been done or suffered willfully or wantonly. This effect may have ensued, as doubtless it did, from the act or omission of the character the pleader avers, and yet the operative so charged may not have intended injury to the plaintiff, or may not have been consciously indifferent to the known consequences to probably flow from the act or omission. .The injury is shown by the count to have been consequential only, not direct or immediate. It is not averred that, in causing or permitting the collision, the defendant’s servant intended to overturn the car of coal on plaintiff or intended in any wise to injure plaintiff. It is not averred that the operative charged with the act or omission alleged knew, at the time he acted or omitted to act, of plaintiff’s presence within any possible sphere of danger from the collision, if the impact was caused or permitted by him to occur. The Brotan Case, supra, succinctly states the pertinent doctrine that has been often applied here. It is unnecessary to reproduce it at this time. The closing sentence of the count added no strength to the preceding allegations of willful or wanton misconduct or omission, since the reference word “aforesaid” restricted the general averment of willfulness and wantonness 'therein made to the circumstances thereinbefore set forth in that connection. — B. R. L. & P. Co. v. Weathers, 164 Ala. 23, 51 South. 303. The court therefore erred in overruling the. demurrer to count 4. For this error, the judgment must be reversed, and the cause remanded. Reversed and remanded. Anderson, C. J., and Sayre and Gardner, JJ., concur.