St. Louis & San Francisco R. R. Co. v. Douglass , 152 Ala. 197 ( 1907 )

DENSON, J.

This is a suit to recover damages on account of the negligent killing of a mare, and the negligent killing or injuring of a mule colt. In each of the counts of the complaint, as they originally stood, it was alleged that the mare and colt were killed. By leave of the court (but against the objections of the defendant) the plaintiff was allowed to amend the first three counts, of the complaint by striking out the words “and mule colt were killed,” and substituting therefor, “mare was killed, and the said mule colt was killed or injured.” Substantially the same amendment was allowed to the fourth count. The defendant also moved to strike the amendments, which motion was overruled. The grounds of the motion argued and insisted upon by counsel are that the amendments present a departure from the original complaint; that they set up two, or different, standards for the measure of damages; and that they present a cause of action barred by the statute of limitations of one year. We are, so far as the brief of counsel is concerned, without authority on the questions of departure and measure of damages. It is clear that the amendments leave the plaintiff on the same ground, in respect to his right of recovery, that he originally stood upon. He has not abandoned the facts alleged in die original counts as the foundation for his case, and resorted to others upon which to rest the alleged liability of the defendant. Evidence that would support the original counts will support them as amended. In short, the amendments make the same case;'their only effect being probably to decrease the amount of damages in respect to the colt. So, even in the light of the case of Nelson v. First National Bank, 139 Ala. 578, 36 South. 707, 101 Am. St. Rep. 52, we are of the opinion that the amendments do not work a departure, nor even present a new cause of action. It follows, from the foregoing considerations, that the statute of limitations of one year has no application. The court committed no error in overruling the objections to filing the amendments and the motion to strike.

The defendant demurred to each count of the complaint before any of them were amended. After the objections to the filing of the amendments, and the motion to strike them from the file, were overruled, the judgment entry recites: “Defendant files demurrers to complaint as amended. The same being considered by the court, it is the order and judgment of the court that the demurrers are not well taken, and it is the order and judgment of the court that they be, and they are hereby, overruled and denied.” There are demurrers in the record which precisely fill the description given in the judgment entry as the ones the court ruled upon, and we cannot consider any others as having been ruled upon by the court. The ruling of the court on the demurrers to the complaint as amended is not only not insisted upon in the brief of counsel for the appellant, but is not assigned as error.

Special plea 2 presented no defense to the action, and the demurrer to it was properly sustained. — 4 Mayfield’s Dig. p. 650, sections 626, 627, 628. Special plea 8, on which issue was joined, presents the same defensp as plea 6. and the defendant cannot complain, even granting that the. demurrer to plea 6 was erroneously sustain'd.

At the conclusion of the evidence the defendant requested the general affirmative charge, with hypothesis, ■us (o the second, third and fourth counts of the complaint. Section 8480 of the Code of 1896 has no application to the case at bar and its provisions cannot aid the second, third, and fourth counts of the complaint. The provisions of that statute are for the protection of the landowner against depredations by stock on his land, and the statute has been by this court strictly construed. It can be made efficacious for its purposes only when the owner of the land through which the railroad runs demands the erection of a gap.- — L. & N. R. R. Co. v. Murphree, 129 Ala. 432, 29 South. 592; Cent. of Ga. Railway Co. v. Sturgiss, 149 Ala. 573, 43 South. 96. “A company authorized to build a railroad on land in which it acquires a right of way is entitled to the exclusive use of the road when built for the service of the public. * * * The laws of the state do not require that a railroad shall be so fenced about and inclosed that domestic animals going at large cannot get upon it. Of course, though, the owners of such uninclosed property would be liable for damages resulting from any violence they should do to live stock straying thereupon, whether produced by acts willfully or only negligently committed. But it does not follow that they must take upon themselves the care or protection of such wandering stock, or that, through fear of doing hurt thereto, they must refrain from using their own premises in a lawful manner, beneficially for themselves. The owners of animals that are turned ont to go at large — ” in the range “ — must bear the loss that may come to them from any mere accident not attributable to the positive misconduct or carelessness of another person.”- — Memphis & Charlestos Railroad Co. v. Lyon, 62 Ala. 71.

The defendant, being under no duty to erect a stock gap to prevent plaintiff’s stock from going on its track or within its inclosure, was under no duty to keep up one. The only negligence attributed to defendant by the second, third, and fourth counts is in failing to construct a stock gap that would prevent plaintiff’s stock from going on defendant’s track and failing to maintain such an one. It is manifest that neither of said counts set forth a substantial cause of action, and that the charges requested in respect to them should have been given. For the refusal to give said charges, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Anderson, JJ., concur.