49 So. 247 | Ala. | 1909
While there are many assignments of error on the record, of the questions raised only two are insisted upon in argument by counsel for appellant, and these relate to the tenth and eleventh counts of the complaint. The assignments which relate to these two counts we think are well taken. These counts were evidently intended by the pleader, and so treated by the court, as counts for wanton and intentional wrong. As such each are defective and subjeci to demurrer.
The facts stated in regard to the defective condition of the defendant’s railroad track would undoubtedly support a charge of negligence; but on the facts stated the pleader predicates a charge of willful or wanton misconduct, and not of simple negligence, and in this respect each of the counts was inconsistent and repugnant in its averments and subject to the demurrer interposed.
For the errors indicated, the judgment is reversed, and the cause remanded,
Reversed and remanded.
