Gadsden & Attalla Union Railway Co. v. Julian

133 Ala. 371

Opinion

SHARPE, J.

Counts 1 and 2 of the complaint are each wanting in particularity of averment, in that they fail to show either that plaintiff’s intestate when injured was not a trespasser on defendant’s track, or that defendant’s servants in charge of the train became aware of his perilous position on the track and were thereafter guilty of actionable misconduct. — Ensley R. R. Co. v. Chewning, 93 Ala. 25; Savannah & W. R. R. Co. v. Meadors, 95 Ala. 137; Highland Ave. & B. R. R. Co. v. Robbins, 124 Ala. 113; L. & N. R. R. Co. v. Brown, 121 Ala. 221.

A child as well as an adult may be a trespasser; and ordinarily a railroad company is under no more obligation to keep a lookout for children who, without enticement for Avhich it is responsible, may go on the track at a place they have no right to be, than to look out for adults. — Highland Ave. & B. R. R. Co. v. Robbins, supra; A. G. S. R. R. Co. v. Moorer, 116 Ala. 642.; 3 Elliott on Railroads, § 1259. Therefore, the averment of infancy contained in counts 1 and 4 does not supply the facts essential to shoAV a duty breached. The demurrers to these counts respectively should have been sustained.

The demurrer to count 3 fails for want of specific grounds, since it merely adopts the grounds in what is referred to as the demurrer to count 2, and no demurrer to count 2 is found in the record.

Reversed and remanded.