45 So. 469 | Ala. | 1908
The complaint contains eight counts, all of which were intended by the pleader as counting on willful or wanton wrong and injury, and evidently, from the ruling of the trial court in sustaining demurrers to the pleas of contributory negligence severally interposed to these counts by the defendant, the court so regarded and considered them. On the principle stated in the case of L. & N. R. R. Co. v. Anchors, 114 Ala. 492, 22 South. 279, 62 Am. St. Rep. 116, and on the authority of that case and others which follow it, several of the counts are insufficient in averments as counts for either willful or wanton injury.
The first count, while it avers that the car was recklessly and wantonly propelled, does not aver in terms that the injury was wantonly inflicted; nor -does it aver the existence of conscious knowledge on the part of the defendant, or rather its agent, that the alleged v antonness would naturally or probably result in injury to the plaintiff; nor does it aver a state of facts as to time, place, and circumstances from which such conscious knowledge of probable injury to follow the alleged wantonness might be fairly and reasonably inferred. In the case of Railroad Co. v. Anchors, supra, recklessness was said to import nothing more than negligence — simple negligence, and it may be, and is doubtless so, that the
The second count is likewise insufficient in declaring for wanton injury. It is averred in this count that the car which struck the plaintiff was at the time being operated at the usual rate of speed in a populous portion of the city, and, further, “that said injuries were caused by the wanton and reckless manner in which the defendant’s servants in charge of said car ran the same along said highway.” Then follows a statement of the facts constituting the alleged wantonness: “That the motorman in charge of said car wantonly and recklessly ran said car without looking ahead, and at the time of the collision aforesaid was looking toward the rear of the car.” The facts here stated show only a failure to keep a proper lookout, which is universally recognized to constitute nothing more than simple negligence. It is wanting in averment of a conscious knowledge on the part of the motorman that his failure at the time to look ahead would naturally and probably result in the injury complained of. Besides, for aught that appears, the motorman may have been in discharge of a duty in looking to the rear at the particular time, as his duties of keeping a proper lookout are not confined to looking ahead always.
The third count, while it avers that the car was being run at a high rate of speed, omits to aver that it Avas in
The seventh count, unlike the others, avers in terms that the injury complained of was wantonly inflicted, without stating the facts in which the wantonness consisted. To this count, therefore, the plea of contributory negligence was no defense, and the demurrer was as to it properly sustained.
We deem it unnecessary to consider other questions raised on the trial, as they may not arise upon another trial. For the errors indicated, the judgment must be reversed, and the cause remanded.
Reversed and remanded.
