Bryant v. Southern Railway Co.

137 Ala. 488 | Ala. | 1902

HARALSON, J.

1. When a complaint does not show a substantial cause of action, a judgment on it will be reversed on error, even if rendered upon a default, and there was no objection to it in the court below. Childress v. Mann, 33 Ala. 206.

Each count in a complaint is considered, as the statement of a different cause of action. — Maupay v. Holley, 3 Ala. 103; Childress v. Mann, 33 Ala. 206.

“The several .counts of a. declaration are regarded as its several parís or sections; and it is not only permissible, but often very proper, to avoid unnecessary repetition and perplexity, that one should refer to. the other. If, however, there is: no express reference, the several counts are considered as distinct as if contained in separate declarations.” — Robinson v. Drummond, 24 Ala. 174, 178. Each count is as distinct as if in separate declarations or complaints, and must independently of the others contain all necessary averments, or the latter count must expressly refer to the former1. — Mardis v. Shackleford, 6 Ala. 436; H. A. & B. R. R. Co. v. Dusenberry, 94 Ala. 418.

The caption in the. first count in the complaint in this case, is “Alva P. Bryant, administrator, etc.” v. “Southern Railway Company.” In the body of the complaint is the averment, “The plaintiff, Alva P. Bryant, suing as the; administrator of the] estate of William P. Borough, deceased, claims,” etc. This averment aids the caption, to the extent of showing in what capacity the plaintiff sues —Blackman v. Moore-Handley Hardware Co., 106 Ala. 458. If this had not been done, and we were left to the caption alone, to determine in what capacity the plaintiff was. suing, it would be held to be his individual suit, and not one in Ids representative capacity.. — Lowery v. Daniel, 98 Ala. 451. The words, “administrator, etc.” following the name of Alva F. Bryant, in the caption of the complaint, are mere words of description, and, alone, as stated, import a suit by said Bryant in his individual and not in his representative capacity. A. F. Bryant and A. F. Bryant administrator are one and the same name. — Lucas v. Pittman, 94 Ala. 616; Westmoreland v. Foster, 60 Ala. 449. The use of the word, administrator, without stating of whom, does, not show that he sues in that capacity, but in his own. — Buckley v. Wilson, 56 Ala. 395.

The second count has the caption, of the first and no more to aid it. It is independent, and commences, “The plaintiff claims,” etc. and avers, that the defendant’s agent and servants did “wantonly propel a locomotive against and kill plaintiff’s intestate.,” without stating who he was. It fails to state a cause of action, and under it no proof of the killing of one Borough, named in the first count, was admissible: In consideration of the case, therefore, we must eliminate this count, and are remitted toi the first count, alone, which charges simple negligence, to which the plea of contributory negligence of plaintiff as the proximate cause of the injury was interposed.

2. Judge Cargóle, a witness for the plaintiff, describes the stock gap and fence at which intestate was killed, as being on the west side of the public road crossing, and on the north side of the railroad track. He stated, “The public road crossing was just at the edge of the stock gap which is constructed by a pit and cross ties, resting upon stringers, and tírese cross ties are, sharpened at the top,, so that they can not be walked over by live stock. The railroad has a fence on each side of the stock gap, constructed of .planks and posts. This fence, where it joins to the stock gap’ slopes from top to bottom, being attached to the stock gap at the' bottom of the fence, and sloping upward from the railroad at the top. The body of Win. Borough was lying against this fence, his head from and his feet towards the railroad. I saw a spot, of blood upon this fence, about the third plank from the bottom, near the body. The body was on the north side of the- railroad, about ten or twelve feet therefrom, and four or six feet from the west side of the. public road crossing.”

One T. J. Barnes testified as to the place of the accident, substantially the same as the witness Oargile. He also stated, that he saw deceased an hour or two before the injury in the field west of the: railroad, where garlic was growing. The evidence tended to show that deceased liad gathered some garlic and had it at the time he was killed. This witness also testified that he was at the time, at his house about 200 yards south of the crossing; that he heard thei engine blow at the signal post, a quarter of a mile east of the crossing, but did not hear it blow or the bell ring at any time after passing the signal post; that the train was running west, going 25 or 30 miles an hour.

The engineer, Cooper, testified that he blew the whistle at the signal post, and that the fireman continued to ring the hell at short intervals until the crossing wras reached and passed; that one could he seen at the crossing for about. 300 yards east therefrom; that he first saw deceased in the act of climbing around the end of the fence, on the north side of the railroad, at 'the stock gap; that looking through the window of his cab, he saw deceased, after crossing the stock gap, come out and go upon the public road, out of sight; that when he last saw him, he was about twelve feet from the railroad; that he next- saw him on the east side of the public road crossing, on the north side of the railroad, and in a little path emerging from the dirt road and running east along the north side of the railroad, with his face turned towards the train; and he was going east and the train west; that lie was just at the edge of the public road in the little path, about three and a half feet from the railroad iron; that the engine was, at thei time, very close to him, when deceased happened to stumble or careen towards the track, and was struck by the deadwood of the engine, which extends eighteen inches outside the rail, and that witness was at his proper place, keeping a steady lookout.

It was shown that there is a curve in the railroad at the public crossing, and the crossing is on a fill; that the inside of the curve is on the north side of the railroad, and the north rail of the track is lower than the south rail.

According to the evidence of these witnesses, deceased was not on the crossing- at the time he was struck. There* was evidence tending to sIioav a failure of the defendant’s engineer to ring the hell, and this was the only evidence of any negligence on the part of the defendant’s employes in control of the train, and it is manifest from all the evidence that this negligence Avas not the proximate cause of the injury complained of.

It is -said the'engineer wasi contradicted hy the witnesses Oargile and Barnes. There is not a more material difference in the statements of these witnesses from that of the engineer, than there is between themselves in their own statements, and there is no material conflict between them and the engineer, — if that is material,— except that they both, state, that the engineer when talking to them, did not say, that deceased, after leaving die stock gap, turned from the railroad upon the dirt road, or passed out of his sight. So far as appears, this variation of the account given by the engineer to the witness, as to 'the circumstances of the killing, doesi not affect the issue under the first count, as to the alleged contributory negligence of plaintiff.

3. If there was error in not' allowing plaintiff to prove, Avhat was the form and carriage of deceased in walking; what was his manner in walking, and Avhether or not he Avallced with a stick, it was error without injury, since Avith those facts in or out of the case, the defendant Avas entitled to the* general charge as requested

Tried on the first count, as the case must have been, there was no error in giving the general charge for the defendant.

Affirmed.