
    Central of Georgia Railway Co. v. Freeman.
    
      Action agcdnst Railway Company to recover Damages for Personal Injuries.
    
    1. Action against railroad company for negligence; when counts of the complaint state a cause of action in trespass. — In an action against a railway company to recover damages for personal injuries alleged to have "been sustained by tbe plaintiff by reason of bis being run over by one of defendant’s locomotives drawing a train, a count of tbe complaint which, in stating tbe negligence complained of, avers “tbat defendant wantonly or intentionally caused said engine or train to run upon or against plaintiff,” or a count which avers tbat “defendant, Through its servant or agent in charge or control of said train, wantonly or intentionally inflicted upon plaintiff the injuries and damages * * * by wantonly or intentionally causing or allowing said train to run upon or against plaintiff,” states a cause of action in trespass, and not in case; and in order to sustain such counts of the complaint, the plaintiff must prove actual participation on the part of the defendant in the damni-fying act.
    Appeal from tbe Circuit Court of Jefferson.
    Tried before tbe Hon. A. A. Coleman.
    This action was brought by tbe appellee, R. A. S. Freeman, against tbe Central of Georgia Railway Company, to recover damages for personal injuries; tbe plaintiff claiming $20,000. Tbe facts of tbe case necessary to an understanding of tbe decision on tbe present appeal are sufficiently stated in tbe opinion.
    There were verdict and judgment for tbe plaintiff, assessing bis damages at |10,000. Tbe defendant appeals, and assigns as error tbe several rulings of tbe trial court, to wbicb exceptions were reserved.
    London & London, for appellant,
    cited Gity Delivery Go. v. Henry, 139 Ala. 161.
    Bowman & Harsh, contra.
    
   SHARPE, J.

On October 29, 1898, plaintiff, while attempting to walk across tbe defendant’s railroad track in Alexander City, was run upon and injured by-a locomotive draxving one of defendant’s trains. To recover for tbe injury this suit was commenced on October 19, 1899, by a complaint consisting of five counts. The fourth and fifth of these counts were held bad on a former appeal. — 134 Ala. 354. After remandment of tbe cause, tbe fifth count went out on demurrer and tbe complaint was on October 25th, 1902, amended by tbe addition of tbe sixth count and by striking out part of the fourth.

In neither tbe fourth nor tbe sixth count is tbe act of running upon the plaintiff characterized as negligent, but tbe fourth as amended avers “that defendant wantonly or intentionally caused said engine or train to run upon or against plaintiffand tbe sixth avers “that defendant through its servant or agent in charge or control of said train, wantonly or intentionally inflicted upon plaintiff the injuries and damages set out in the first count of this complaint by wantonly or intentionally causing or allowing said train to run upon or against plaintiff,” etc. These counts are in trespass.

The only evidence introduced on the trial as to who ran the train or directed the manner of its running, or as to who supplied the animus of the act complained of, had reference to the engineer or person in the employ of the defendant, who was on and in the immediate control of the train. In City Delivery Co. v. Henry, 139 Ala. 161, 34 So. Rep. 389, there were counts which averred that “the defendant through its agent or servant, John McClary, wantonly, willfully, or intentionally caused an ice wagon to run against plaintiff with great force, thereby throwing plaintiff upon the ground and inflicting upon her serious injuries,” etc. In the opinion rendered it was said: “We see no escape from the conclusion that the wantonness, willfulness, and intentional wrong thus averred are the wantonness, willfulness and evil intention of the defendant itself, as contradis-tinguished from the wrong of the servant only, for the •consequences of which the defendant is responsible merely because of its relation of employer to McClary. The charge involves the affirmative participation of defendant in the act of driving the wagon against the plaintiff, and not merely the defendant’s responsibility for the act of its servant. It is in effect to say, that the vehicle was run against the plaintiff by the direction of the defendant. The injury ascribed to the defendant is direct and immediate from force applied by it and not merely from force applied by the servant within the scope of his employment. The counts are in trespass for the act of the defendant itself and not for the unauthorized act of the servant for which it is responsible. To sustain them, the proof of actual participation on the part of the defendant in the damnifying act was essential. No such proof, nor any evidence tending to establish such participation, was adduced. The affirmative charges with hypothesis requested by- defendant on the second and fourth counts of the complaint should, therefore, have been given.” That expression and the decision is in principle pointedly applicable to the present case and so rules it as to show there was error in refusing the general affirmative charge requested by defendant oh the fourth and sixth counts, for which the judgment must be reversed. For other authorities supporting this conclusion, see Sou. Bell Tel. Co. v. Francis, 109 Ala. 224; Sou. Ry. Co. v. Yancy, 37 So. Rep. 341.

On counts 1, 2, and 3, of the complaint, the jury was charged in favor of defendant, and in view of that fact and the present state of the record, it seems unnecessary to further consider the assignments of error.

Reversed and remanded.  