Alabama Central Railway Co. v. Humphries

53 So. 1013, 169 Ala. 369, 1910 Ala. LEXIS 233

• Court: Supreme Court of Alabama
• Decided: November 30, 1910
• Status: Published

Opinion

McCLELLAN, J.

Action for personal injuries. All of the counts of the complaint save that numbered 10 were eliminated from the case before the jury retired. So upon that count alone the verdict and judgment rest. The report of the appeal will contain that count.

The court helow, consistent with the contention of counsel for plaintiff, assumed that the count stated a good cause of action as for an injury wantonly or intentionally inflicted. It was ruled in Louisville & Nashville Railroad Co. v. Brown, 121 Ala. 221, 25 South. 609, and in Same v. Banks, 132 Ala. 471, 31 South. 573, and in Mobile, Jackson & Kansas City Railroad Co. v. Smith, 153 Ala. 127, 45 South. 57, 127 Am. St. Rep. 22, that, in order to ascribe an injury for proximate cause to wanton or intentional misconduct or omission, knowledge of the elements of a dangerous situation will not justify the implication that at the time the act was done or omitted the derelict party was conscious that from his act or omission to act injury would probably result. Such is the fault, in omissive averment, of the count under consideration.

The count, in strength of averment characterizing the degree of culpability really charged, is limited to the “full knowledge” possessed by the engineer “of said facts.” The “said facts,” detailed in the count, show no more than an acquaintance by the engineer with the “elements of a dangerous situation.” It is not averred in tbe count that, at tbe time tbe engine and cars were driven at a dangerous speed over tbe uneven, unstable track, tbe engineer was then conscious that bis act in so driving them would probably result in injury. Tbe count charges simple negligence only.

Tbe demurrer should have been sustained.

Reversed and remanded.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.