Louisville, Evansville & St. Louis Railroad v. Hill

Reeves, J. This action was to recover the value of a cow, alleged to have been killed by a train of appellant at a road crossing, just west of Mt. Vernon. The declaration charged negligence in not performing a statutory duty to ring a bell or blow a whistle before crossing the public highway.

By leave of the trial court appellee filed what he denominated an amendment to his original declaration, which, after stating facts which rendered the crossing a dangerous one, charged that the appellant ran its train over said crossing at a high rate of speed, and in a careless and reckless manner. This amendment attempted to make a case of common law negligence. Appellant interposed a demurrer, both general and special, to the declaration as amended, and among other-grounds, alleged that there was an attempt in the declaration to set up in one count two distinct causes of action, one arising from statutory and the other from common law negligence.

The court below overruled the demurrer, and appellant standing by its demurrer, there was judgment for appellee.

We think the court erred in its ruling upon this demurrer. It seems to us clear that the declaration as amended was open to .demurrer upon the ground that in one count it attempted to set up' two distinct causes of action; this should have been done by two counts.

For this error the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.