77 So. 237 | Ala. | 1917
Plaintiff complains of the elimination of count A of the complaint on demurrer; the argument being not only that the demurrer was not well taken, but that the error in sustaining was prejudicial because under count C plaintiff's case was limited to defendant's subsequent negligence, while under count A original or initial negligence might have been shown.
It may well be doubted if the allegation merely that the intestate was attempting to cross defendant's track at the time of his injury is sufficient to show that he was rightfully on or near the track, and therefore was not a trespasser. The right to cross over railroads at places other than crossings cannot be denied, but the right is obviously qualified by considerations of convenience or necessity. See A. G. S. R. R. Co. v. Linn,
We think the count is free from objection, *695 and that the trial court erred in sustaining the demurrer thereto.
The plea of contributory negligence does not show that intestate's negligence was subsequent to or concurrent with the negligence charged in the complaint, and the ground of demurrer pointing out that deficiency was well taken and should have been sustained. Bryant v. A. G. S. R. R. Co.,
The record contains no bill of exceptions, but the instructions to the jury which are incorporated in the record sufficiently indicate that the error in this regard was probably prejudicial to plaintiff. Rule 45, 61 So. ix; Henderson v. T. C., I. R. Co.,
Let the judgment be reversed, and the cause remanded for further proceedings in accordance with this opinion.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.
