92 So. 487 | Ala. | 1922
The complaint being amended by adding counts 2, 3, and 4, a demurrer being sustained to said counts, plaintiff withdrew count 1, declined to amend counts 2, 3, and 4, and took a nonsuit on account of the adverse ruling of the court in sustaining demurrer to said counts. It was the judgment of the court that plaintiff was nonsuited, and defendant was permitted to go hence and have and recover of plaintiff the costs in that behalf expended. Paterson Edey Lbr. Co. v. Bank of Mobile,
The fourth count was, by the adoption of count 3 and addition thereto, as follows:
"That plaintiff demanded of the defendant that it construct a stock gap at the place where said mule was injured, and before said mule was injured; that a reasonable time elapsed after said demand, and that defendant failed before the damage here complained of to construct a gap or guard that would not injure said stock as aforesaid."
Said fourth count was not subject to any of the grounds of demurrer directed thereto. Its essential averments were (in count 3) of plaintiff's ownership and possession of the lands; that defendant operated the railroad and track on which it ran trains across said lands, and erected and maintained a cattle guard or stock gap, which was negligently constructed and maintained, in such wise that stock or cattle, in attempting to cross, would "get hung or caught between the strips out of which said stock guard or gap was constructed, and thereby injured or killed"; that on the date indicated plaintiff's mule, in attempting to go from said land across said cattle guard or gap, caught one of his feet between the strips of which same was constructed, injuring said mule to such extent that it died; that said injuries and death were caused by defendant's negligence in construction and maintenance, with knowledge or notice of its condition, and that live stock attempting to cross the same would thereby be injured; that within a reasonable time before the injury of said mule plaintiff had demanded of defendant that it construct a cattle guard or gap at the place the mule was injured, and defendant had failed before the damage complained of "to construct a gap or guard that would not injure said stock as aforesaid." For reasons stated in Carrollton Short Line v. Lipsey,
When the statute imposes a duty on a railroad company, operating trains or engines over its lines, to erect and maintain cattle guards or gaps thereon, there is liability for a failure or violation of statutory duty pertaining thereto. Code, § 5513; Atl. St. A. B. Ry. Co. v. Fowler,
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.
