Seaboard Air Line Ry. v. Wright

41 So. 461, 148 Ala. 27, 1906 Ala. LEXIS 279

• Court: Supreme Court of Alabama
• Decided: June 6, 1906
• Status: Published

Opinion

TYSON, J.

—This action Avas brought to recover damages suffered by plaintiff on account of injuries to his growing crop caused by stock depredating upon them. The gravamen of the complaint is the negligent failure of defendant, after demand, to erect and maintain guards, so as to . prevent the stock'from going into plaintiff’s fields Avhen his crops were growing. The averment is “that the stock gaps or cattle guards at the points Avhere defendant’s said railroad track enters into plain-uff’s said fields are and have been at all times wholly insufficient to prevent stock from passing over the same and entering into plaintiff’s fields, etc. It is entirely clear that the action was brought for a violation of the duty created and imposed bv. section 3480 of the Code of 1896.

The fourth plea to which a demurrer was sustained neither traverses nor confesses and avoids the aver-ments of the complaint. It contains no averment that the guards erected and maintained by defendant were reasonably sufficient for the purpose for which they were erected. Non constat, they may be wholly insufficient, as alleged in the complaint; and clearly, if they are, the fact that they are in use by all well-regulated railroads does not and cannot exempt the defendant from liability for a violation of the duty which it owed the plaintiff. We do not wish to be understood that, if the plea contained all the necessary averments to make it a good traverse, we would hold that the sustaining of a demurrer to it would be a reversible error. The matter, if properly pleaded as a defense, would be clearly admissible as evidence under the general issue.

Affirmed.

Weakley, C. J., and Simpson and Anderson, JJ., . concur.