Birmingham Southern Ry. Co. v. Stephens

ANDERSON, C. J. — Counts 1 and 2, as amended, not only conform to.the ones held good in the case of A. G. S. R. R. Co. v. [109] Davis, 119 Ala. 572, 24 South. 862, but meet the point of criticism of said case in Woodward I. Co. v. Marbut, 183 Ala. 310, 62 South. 804. It may be conceded that the counts do not meet the requirements set forth in the case of Ala. S. & W. Co. v. Griffin, 149 Ala. 423, 42 South. 1032, but this case was modified in the case of Boggs v. Consolidated I. Co., 167 Ala. 251 52 South. 878, 140 Am. St. Rep. 28, and we think that the counts in question meet the requirements of said last case. Moreover, if these counts proceed under subdivision 5 of the Employer’s Act, and it was essential, in an action under the statute, as distinguished from the common law, to aver that the plaintiff v/as an employee in and about the railroad, or that his duties required him to be working upon or about a railroad, this point is not specifically pointed out by the defendant’s demurrer. Counts 1 and 2, as amended, in the case at bar, are unlike the count condemned in the case of Gordon v. Tenn. Co., 164 Ala. 203, 51 South. 316. They aver that the defendant was engaged in operating a railroad and in running an engine and cars, etc., and that the plaintiff’s injuries were the proximate consequence, and caused by the reason of the negligence of Sam Nichols, who was in charge and control of a car upon the defendant’s railway, etc. The second count, charging that the defendant’s servant negligently permitted the defendant’s railway motor car to be wrecked, etc. The complaint in the Gordon Case did not charge that the track or cars belonged to the defendant, or that the cars were being operated by the defendant’s servants. The report of this case shows an amendment to the complaint, but the opinion of the court dealt with the complaint before the amendment. The original record has been examined, and the error assigned and treated in the opinion in the Gordon'Case, supra, was to the original complaint, and not after the amendment as set out by the reporter. Indeed, the trial court held the count as amended sufficient, and overruled the defendant’s demurrer to the amended count, and this court did not consider the count as amended. The judgment of the city court is affirmed. Affirmed. Mayfield, Somerville, and Thomas, JJ., concur.