
    Gordon v. Tennessee Coal, Iron & Railway Co.
    
      Crossing Accident.
    
    (Decided Jan. 13, 1900.
    51 South. 316.)
    
      Railroads; Crossing Accident; • Complaint; Sufficiency. — In an action against a railroad for injuries by being struck by a 'train at a crossing, a complaint that fails to allege either that the defendant was operating the ear, or that the negligence of the servant complained of was in and about the operation of the cars, or that the cars were run against plaintiff through the negligence of the defendant’s servants in the operation of, or that the defendant’s servants wantonly or intentionally ran the cars against plaintiff, is defective.
    Appeal from Birmingham City Court.
    Heard before Hon. C. W. Ferguson.
    Action by J. H. Gordon against the Tennessee Coal, Iron & Railroad Company for injuries while crossing its track. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    The first count is as follows: “Plaintiff claims of defendant the sum of nineteen hundred ninety-nine dollars ($1,999.00) as damages, for that heretofore, to wit, August 27, 1906, plaintiff was in a vehicle drawn by a horse, and engaged in or about crossing a railway, in a city, town, or village in Jefferson county, Alabama, to-wit Johns, and while so engaged at said time and place one or more cars on said railway ran upon or against said vehicle, and as a proximate consequence thereof plaintiff was greatly shocked, bruised, mashed, and otherwise injured in ihis body, he was injured in his back, hips, kidneys, liver, and bowels, and other internal organs, and was made sore and sick, his health and physical stamina were greatly and permanently impaired, he was permanently injured, he was rendered permanently less able to work and earn money, and was rendered likely for ,a long time to suffer great mental and physical pain, and was put to great trouble, inconvenience, and expense in .and about his efforts to heal and cure his said wounds and injuries. Plaintiff alleges that said car or cars ran upon or against said vehicle as aforesaid, and he suffered said injuries and damages, by reason and as a proximate consequence of the negligence of the defendant, or its servant or agent, acting within the line and scope of its authority as such servant or agent.” This count was amended, after demurrers were sustained, by adding after the words “plaintiff alleges,” where they first occur, the following.: “that defendant, by. and through its servant or agent, was operating a car or cars upon, along, or over said line of railway at said time, and.”
    Bush & Bush, for appellant.
    The 1st count was sufficient, and the court erred in sustaining demurrers thereto. — Southern By. Co. v. Hobbs, 151 Ala. 335.
    Perot, Benners & Burr, for appellee.
    The complaint was insufficient, and the court properly sustained demurrers thereto. — Ensly By. Co. v. Chewning, 93 Ala. 2fi; Montgomery v. Gilmer, 33 Ala. 116; Phoenix 
      
      I. Go. 17. Moog, 78 Ala. 284; L. & N. v. Jones, 88 Ala. 376.
   ANDERSON, J.

While it has been repeatedly held by this court that a complaint need not define the quo modo, or specify the particular acts of diligence omitted, it has never been held that a complaint is good which does not set up facts from which a duty springs, or which fails to aver a responsibility, on the part of the defendant, for the negligence charged. There is no averment that the defendant was operating the cars in question, or that the negligence of its servants, complained of, was in and about the operation of defendant’s cars. There is no averment that the cars were run upon or against the plaintiff through the negligence of defendant’s servants in operating same, or that its servants wantonly or intentionally ran the cars over or upon him. The servants may have negligently caused the plaintiff’s injury in some way other than by the operation of the cars. There is nothing in the complaint to indicate that the negligence charged was in and about the operating of the cars, or that the defendant, was operating the cars by or through its servants when the plaintiff was injured.

The only case cited by appellant, So. R. R. v. Hobbs, 151 Ala. 335, 43 South. 844, does not support the sufficiency of the present complaint. The complaint, which was held good in said case, alleged that the injuries were caused by and were the proximate result of the negligence' of' defendant’s servants in running said engine. The trial court did not err in sustaining the demurrer to counts 1 and 2 of the complaint, and the judgment of the city court is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and Evans, JJ., concur.  