Opinion
6 Div. 353.
October 5, 1933. Rehearing Denied November 2, 1933.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Drennen Perrine, of Birmingham, for appellant.
A count which shows a duty resting upon defendant and alleges a negligent breach of that duty resulting in injury is sufficient. Southern R. Co. v. Wright, 207 Ala. 411, 92 So. 645. The duty of care being shown, a general averment of negligence or wantonness is sufficient. Southern R. Co. v. Gantt, 210 Ala. 383, 98 So. 192. A railroad is liable to a trespasser or intruder who is proximately injured by reason of being ejected in an improper manner, time, or place, by the servant or agent of the railroad. Southern R. Co. v. Eaks, 220 Ala. 49, 124 So. 88, 89. The affirmative charge is improperly given where there is evidence reasonably affording an inference adverse to the right of recovery by the party asking the charge. McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Birmingham S. R. Co. v. Vanderford, 217 Ala. 342, 116 So. 334; Alabama Great Southern R. Co. v. Demoville, 167 Ala. 292, 52 So. 406; Henry v. McNamara, 114 Ala. 107, 22 So. 428. It was a question for the jury whether the act of shooting was done by an agent of defendant. Highland Ave. B. R. Co. v. Robinson, 125 Ala. 483, 28 So. 28, 30; Ill. Cent. R. Co. v. Brown (Miss.) 39 So. 531; Dorsey v. Kansas City, P. G. Ry. Co., 104 La. 478, 29 So. 177, 52 L.R.A. 92; Yazoo M. V. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellee.
An inference can only be drawn from facts in evidence, and one inference cannot be drawn from another inference or other inferences. Miller-Brent Lumber Co. v. Douglas, 167 Ala. 286, 52 So. 414; Goslin-Birmingham Mfg. Co. v. Gantt, 222 Ala. 321, 131 So. 905; Atlantic Coast Line R. Co. v. R. L. Cooper L. Co., 219 Ala. 484, 122 So. 661; Gadsden Gen. Hospital v. Bishop, 209 Ala. 272, 96 So. 145; Diel v. Missouri Pac. R., 37 Mo. App. 454. A railroad owes no duty to a trespasser on one of its trains other than not to wantonly injure him and not to negligently injure him after knowledge of his peril. Neyman v. Alabama Great Southern R. Co., 172 Ala. 606, 55 So. 509, Ann. Cas. 1913E, 232; Lawrence v. Kaul Lumber Co., 171 Ala. 300, 55 So. 111; McElvane v. Cent. of Georgia R. Co., 170 Ala. 525, 54 So. 489, 34 L.R.A. (N.S.) 715. A count, to be good, must state the place of the alleged injury with sufficient certainty to enable defendant to prepare its defense. Louisville N. R. Co. v. Whitley, 213 Ala. 525, 105 So. 661; Alabama Great Southern R. Co. v. Sheffield, 211 Ala. 250, 100 So. 125; Western Ry. of Alabama v. Turner, 170 Ala. 643, 54 So. 527. Where, under the evidence, plaintiff could not have recovered on a certain count, any error in sustaining the demurrer thereto is harmless. Lawrence v. Kaul Lumber Co., supra.
The principles of law which mainly control this case are stated in Southern Rwy. Co. v. Eaks, 220 Ala. 49, 124 So. 88.
The chief question presented in this case is whether the evidence was sufficient to justify a finding that plaintiff was injured by being forced off one of defendant's moving trains by a servant of defendant. Plaintiff was admittedly a trespasser riding on a freight train without any claim of right.
At the conclusion of plaintiff's testimony the court gave for defendant the affirmative charge. The question is the effect of the testimony introduced by plaintiff. That given by plaintiff himself was that a man, dressed in a blue suit and a gray hat, got out of the engine, and started shooting at plaintiff, causing him to fall off the train and receive injuries. Another witness testified that he heard a shot and then he saw a man coming down off the side of a box car, swinging off it, and he shot again when he was on the ground, and that he caught the train back there. This witness gave no description of the man, nor of his clothing. Neither of them testified, nor did any one, of any act or circumstance tending to show that he was performing any duties on or about the movement of the train or the business of defendant. His blue suit and gray hat, and that he got off the engine or a box car, or that he caught the train back there, are not sufficient to justify an inference that he was an employee of defendant, though he may have shot at plaintiff.
Plaintiff was violating a criminal statute of the state (section 5363, Code), and was in an incorporated city, where it is usual to provide policemen to enforce the criminal laws of the city and state. The act of the man in blue suit and gray hat might as well have been that of a city or county officer as a railroad employee. There must be some circumstance from which it may be found that he was such employee rather than an officer not so employed to justify a finding to that effect. Such was the situation in Southern Rwy. Co. v. Eaks, supra, and in Yazoo M. V. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90, relied on by appellant.
To a trespasser in its trains, a carrier is liable only for wanton or willful injury, including a failure to exercise due care to avert injury after the danger is apparent. Lawrence v. Kaul Lumber Co., 171 Ala. 300, 55 So. 111; McCauley v. Tenn. Coal, Iron R. R. Co., 93 Ala. 356, 9 So. 611; Crider v. Yolande C. C. Co., 206 Ala. 71, 89 So. 285.
If count 2 is to be treated as a simple negligence count, it does not show a duty to that effect, since it does not show that plaintiff was not a trespasser. If the count is intended and sufficient to charge a failure to exercise due care to avert injury after the danger is apparent, or if it is sufficient to show wantonness, the right of plaintiff in this respect is fully covered by counts 1 and 3, and no injury resulted in view of the evidence, which shows a wanton or willful injury, if any wrong at all was done. In any aspect of the case, there was no reversible error in sustaining demurrer to count 2.
No such error elsewhere appearing, the judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.