Central of Georgia Railway Co. v. Freeman, 140 Ala. 581

Central of Georgia Railway Co. v. Freeman

140 Ala. 581 | Ala. | 1903

SHARPE, J.

On October 29, 1898, plaintiff, while attempting to walk across tbe defendant’s railroad track in Alexander City, was run upon and injured by-a locomotive draxving one of defendant’s trains. To recover for tbe injury this suit was commenced on October 19, 1899, by a complaint consisting of five counts. The fourth and fifth of these counts were held bad on a former appeal. — 134 Ala. 354. After remandment of tbe cause, tbe fifth count went out on demurrer and tbe complaint was on October 25th, 1902, amended by tbe addition of tbe sixth count and by striking out part of the fourth.

In neither tbe fourth nor tbe sixth count is tbe act of running upon the plaintiff characterized as negligent, but tbe fourth as amended avers “that defendant wantonly or intentionally caused said engine or train to run upon or against plaintiffand tbe sixth avers “that defendant through its servant or agent in charge or control of said train, wantonly or intentionally inflicted upon plaintiff the injuries and damages set out in the first count of this complaint by wantonly or intentionally causing or allowing said train to run upon or against plaintiff,” etc. These counts are in trespass.

The only evidence introduced on the trial as to who ran the train or directed the manner of its running, or as to who supplied the animus of the act complained of, had reference to the engineer or person in the employ of the defendant, who was on and in the immediate control of the train. In City Delivery Co. v. Henry, 139 *583Ala. 161, 34 So. Rep. 389, there were counts which averred that “the defendant through its agent or servant, John McClary, wantonly, willfully, or intentionally caused an ice wagon to run against plaintiff with great force, thereby throwing plaintiff upon the ground and inflicting upon her serious injuries,” etc. In the opinion rendered it was said: “We see no escape from the conclusion that the wantonness, willfulness, and intentional wrong thus averred are the wantonness, willfulness and evil intention of the defendant itself, as contradis-tinguished from the wrong of the servant only, for the •consequences of which the defendant is responsible merely because of its relation of employer to McClary. The charge involves the affirmative participation of defendant in the act of driving the wagon against the plaintiff, and not merely the defendant’s responsibility for the act of its servant. It is in effect to say, that the vehicle was run against the plaintiff by the direction of the defendant. The injury ascribed to the defendant is direct and immediate from force applied by it and not merely from force applied by the servant within the scope of his employment. The counts are in trespass for the act of the defendant itself and not for the unauthorized act of the servant for which it is responsible. To sustain them, the proof of actual participation on the part of the defendant in the damnifying act was essential. No such proof, nor any evidence tending to establish such participation, was adduced. The affirmative charges with hypothesis requested by- defendant on the second and fourth counts of the complaint should, therefore, have been given.” That expression and the decision is in principle pointedly applicable to the present case and so rules it as to show there was error in refusing the general affirmative charge requested by defendant oh the fourth and sixth counts, for which the judgment must be reversed. For other authorities supporting this conclusion, see Sou. Bell Tel. Co. v. Francis, 109 Ala. 224; Sou. Ry. Co. v. Yancy, 37 So. Rep. 341.

On counts 1, 2, and 3, of the complaint, the jury was charged in favor of defendant, and in view of that fact *584and the present state of the record, it seems unnecessary to further consider the assignments of error.

Reversed and remanded.