56 So. 587 | Ala. | 1911
— Tbe judgment entry and brief of appellant’s counsel indicate that tbe complaint consisted of 4 counts, two original ones and 3 and 4 added by way of amendment. It also appears that demurrers were sustained to counts 1 and 3 and overruled as to 2
For aught that appears from count 1, the intestate Avas a trespasser, and the only duty that the defendant OAved him was not to willfully or wantonly run over him or not to negligently do so after discovering his peril, and which said averment is utterly wanting in said count 1. The case of Highland Ave. R. R. Co. v. Robbins, 124 Ala. 113, 27 South. 422, 82 Am. St. Rep. 153, cited by counsel, is not only not in conflict with this holding, but supports us in deciding that count 1 makes the intestate a trespasser.
The trial court did not commit reversible error for refusing to strike so much of the answer of the defend
Since the record does not disclose count 4, the only one under which this case was tried, we cannot review the action of the trial court in ruling upon the evidence or in giving or refusing charges.
The judgment of the circuit court is affirmed.
Affirmed.