50 So. 897 | Ala. | 1909
— This appeal brings into review the judgment of the court beloAV sustaining demurrers tO' all counts of the complaint except the eighth, which Avas
This case does not fall within that class of cases, many of which have come here, and some of which are cited in our recent case of M., J. & K .C. R. R. Co. v. Smith, 153 Ala. 127, 45 South. 57, 127 Am. St. Rep. 22, in which it has been held that when the injury occurs at a public crossing or other place in a public highway where the frequency of its use renders it probable that the operaation of a train at great speed, or without the observance of other precautions demanded .by these conditions, may constitute wantonness, although the actual presence of persons in a position of peril may not be known to those in charge of the train. In such cases the intentional or recklessly indifferent disregard of a most imperative duty seems to have been treated in the decision of this court as the equivalent of wantonness. Possibly count 10 was intended to- invoke the principle last referred- to, for it avers that the train was operated across and between Conecuh and Chunnenuggee streets, both.’ streets over which a large number of people were
Counts 6 and 7 were also designed to state a case of wanton injury. But the pleader sets down the facts which are supposed to support the charge of wantonness. They fail to support it. To operate a train through a town, while it is dark, at a rate of speed prohibited by ordinance, does not, without more, constitute that wantonness which is the equivalent of intentional ■wrong. The conclusion which the’ pleader draws from these facts, that such operation of the train was wanton, is not to be sustained in law; for they are equally compatible with the conclusion that the train was so operated as the result of inadvertence or mere negligence. Nor can the counts be sustained as embodying a charge of simple negligence. They show necessarily that the plaintiff’s intestate was on or in dangerous proximity to the track, and fail to show that he was not thereby a trespasser. Under these conditions there was no duty to keep a lookout for the deceased, but only the duty not to injure him after discovering his peril.' — Gadsden & Attalla Railway v. Julian, 133 Ala. 373, 32 South. 135; Georgia Pacific v. Ross, 100 Ala. 490, 14 South. 282; Ensley Railway Co. v. Chewning, 93 Ala. 24, 9 South. 458.
The trial court properly sustained demurrers to each 'and every count of the complaint.
Affirmed.