Mobile & Montgomery Railway Co. v. McKellar

59 Ala. 458

Opinion

STONE, J.—

We have said that the introduction of steam as a motive power, has wrought some changes in the application of legal principles.—See Satterfield v. Mobile Trade Company, and Tanner v. Louisville and Nashville R. R. Co. (in manuscript.) Corporations—especially railroad corporations—may commit trespass.—2 Addison on Torts, 720, 1117 to 1123; Smith v. Birmingham and Staffordshire Gas Light Co. 1 Adol. & El. 526; 1 Redf. on Railways, 365, 511; Ormsby v. M. & W. P. R. R. Co. 37 Ala. 560.

The original complaint in this cause was clearly in trespass.— Williams v. Ivey, 37 Ala. 244; Ragsdale v. Bowles, 16 Ala. 62; Sheppard v. Furniss, 19 Ala. 760. The wrong charged was possibly, direct and immediate, which is the distinguishing characteristic of trespass. The amended complaint charges the injury complained of to the negligence of the corporation and its employees. This makes a special .action on the case. It is not permissible, by amendment, to change the form of action.—MoLemore v. Brassed, at December term, 1876, and authorities cited. We feel compelled to hold that the amendment made was not allowable under our uniform rulings, from which we do not feel at liberty to depart.— Crimm v. Crawford, 29 Ala. 623; 1 Brick. Dig. 22, §§16,17, 18. _

_ Judgment of the Circuit Court reversed, and cause re.manded.