Amerson v. Montgomery & Mobile Railroad
Supreme Court of Alabama
Appeal from the Circuit Court of Conecuh. Tried before the Hon. P. O. Harper. This action was brought by the appellant, an infant, who sued by his next friend, to recover damages for personal injuries sustained by him in attempting to get off the defendant’s cars, while the train was in motion, under the orders of the conductor.
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Appeal from the Circuit Court of Conecuh. Tried before the Hon. P. O. Harper. This action was brought by the appellant, an infant, who sued by his next friend, to recover damages for personal injuries sustained by him in attempting to get off the defendant’s cars, while the train was in motion, under the orders of the conductor. The court below sustained a demurrer to the orig inal complaint, and the plaintiff then filed an amended complaint, to which the court again sustained a demurrer. In consequence of these rulings of the court, the plaintiff took a nonsuit, with a bill of exceptions;…
1Opinion of the CourtPeters, C. J.
I have carefully examined the case presented by the record, and cannot perceive any distinction between it and the case of Paulling v. Marshall & Wife, 47 Ala. 270. In this latter case it was said : “ Where the defendant demurs to the plaintiff’s complaint, and it is sustained by the court, and the plaintiff excepts to the decision of the court, and thereupon suffers a nonsuit, such a nonsuit must be regarded as a voluntary, and not as a necessary nonsuit; and such a nonsuit will not be set aside on appeal, under section 2759 of the Revised Code.” This is precisely the present case. The…
2Cases cited1 opinion
- Paulling v. MarshallSupreme Court of Alabama · 1872