[Jefferson, pro ami v. Birmingham Railway & Electric Co.] The demurrers, at least upon the grounds assigned, should have been overruled.-Mobile & Montgomery Railway Co. v. Crenshaw, 65 Ala. 567. WALKER, PORTER & WALKER, contra.-A child not yet. arrived at the age of discretion can not be guilty of contributory negligence, and, therefore, a railroad company is liable for injuring it, if guilty of simple negligence only. If, however, such a child should get upon the track in front of a moving engine so close that the engineer, after discovering it, could not keep from running over it, there could be no recovery-just as would be the case with an adult. And so, if such a child should attempt to get upon the train from the side and no employè of the railroad company knows of the peril of the child in time to prevent it from being injured; while the child has not been guilty of contributory negligence, because it can not be, the railroad company has not been guilty of even simple negligence.-Ala. G. So. R. R. Co. v. Dobbs, 101 Ala. 219; Nave v. A. G. S. R. R. Co., 96 Ala. 264. The fourth count did not allege willful or intentional injury. The allegation being that appellee or its servants recklessly and wantonly or intentionally-did not hurt or injure the boy-but caused him to leave the car while it was in motion and in consequence thereof he was injured. This is not an allegation by any means that appellee or its servants willfully injured him. Willfully making one leave a car is not willfully injuring him. This court has time and time again held that the injury must be intentional. Here it is not so alleged, but simply, that he was willfully made to leave the carin other words, that appellee or its servants saw the boy on the car and made him get off.-Haley v. K. C., M. & B. R. R. Co., 113 Ala. 640. HARALSON, J.-The rule in respect to contributory negligence of children has been stated by this court to be, that "a child between seven and fourteen years of age is prima facie incapable of exercising judgment and discretion, but evidence may be received to show capacity. * * * If the plaintiff is of such tender years, that he is conclusively presumed incapable of judgment and discretion, and of owing duty to another, neither * [Jefferson, pro ami v. Birmingham Railway & Electric Co.] contributory negligence on his part, nor that of his parent, can be set up to defeat a recovery."—Pratt C. & I. Co. v. Brawley, 83 Ala. 374; Gov. St. R. R. Co. v. Hanlon, 53 Ala. 70. See also 3 Elliott on Railroads, § 1261. In speaking of the liability for injury to trespassing children, Elliott, in his work on Railroads, says: "In actions for injuries to children, as in other cases, there can be no recovery unless the defendant has been guilty of a breach of duty. * * There is a sharp con flict among the authorities, however, as to what the duty of a railroad company is to children who come upon its premises as trespassers or mere licensees. We believe the true rule to be that, although the age of the child may be important in determining the question of contributory negligence or the duty of the company after discovering him, the company is, in general, no more bound to keep its premises safe for children who are trespassers, or bare licensees not invited or enticed by it, than it is to keep them safe for adults." To sustain this doctrine he cites a long list of authorities from many courts.-3 Elliott on Railroads, § 1259. In Bishop v. Union R. R. Co., 14 R. I. 314, similar in principle to the one before up, and which, from the frequency of its citation as well as from its own inherent merits, seems to be a leading case on the subject, the Supreme Court of that State lay down the doctrine, that the owner of property which has been trespassed upon, is not liable to the trespasser for an injury arising from the trespass merely because he might by care have guarded against it. Referring to the class of cases relied on by appellant in this case, to sustain his complaint, as where defendant's servant left his cart and horse in a public street, unattended, for half an hour, and a boy six years old, who had gotten into the cart and attempted to get out was injured, after another boy had started the horse off, (Lynch v. Nurdin, 1 Ad. & El. N. S. 29); or where a child six years old was injured while playing with a turn table of a railroad company, (Railroad Company v. Stout, 17 Wall. 657); or where defendant put a heavy gate on his own land, beside a passway which was used by children, going to and from the public road, but left it so carelessly that it fell upon and injured a child between six and seven years old, [Jefferson, pro ami v. Birmingham Railway & Electric Co.] who shook it in passing, (Birge v. Gardiner, 19 Conn. 507), in each of which cases a verdict was sustained against the defendant therein, the court said: "We know of no cases more favorable to the plaintiff than the three cases last cited, but in all three of them the object which caused the injury was a dangerous object left exposed, without guard or attendant in a public place of common resort for children. An object so left is a standing temptation to the natural curiosity of a child to examine it, or to his instinctive propensity to meddle or play with it." The court added: "The case at bar differs very much from the three cases previously stated, for in the case at bar the cars, instead of being left unattended, were in the charge of the driver who was in the act of driving them, so that there was nothing done to encourage the trespass, which was merely the result of momentary impulse. Ordinarily a man who is using his property in a public place is not obliged to employ a a special guard to protect it from intrusion of children, merely because an intruding child may be injured by it. We have all seen a boy climb up behind a chaise or other vehicle for the purpose of stealing a ride, sometimes incurring a good deal of risk. It has never been supposed that it is the duty of the owner of such a vehicle to keep an outrider on purpose to drive such boys away; and that, if he does not, he is liable to any who is injured while thus secretly stealing a ride. In such a case no duty of care is incurred." In support of the doctrine many cases are cited, to which may de added, as being in point, Western Railway of Ala. v. Mutch, 97 Ala. 194; Cartlett v. Railway Co., 57 Ark. 461; Railway Co. v. Stumps, 69 Ill. 409; Railway Co. v. Connell, 88 Penn. St. 520; Rodgers v. Lees, 140 Penn. St. 475; Daniels v. Railway Co., 154 Mass. 349; Snyder v. Railway Co., 60 Mo. 413; Railway Co. v. Smith, 46 Mich. 504; Railway Accident Law, $ 75. From what has been predicated, it will appear that counts of the complaint, numbered 1, 2, 3 and 5, were insufficient as charges of negligence against defendant, and were subject to the demurrer interposed to them. The fourth count was intended to set up that the servants of the defendant willfully or intentionally caused the injury to the child. It not only fails in this respect, but does not even aver any actionable negli [Alabama Great Southern Railroad Co. v. Shahan.] gence. The defendant's servants had the right to cause the trespassing child to get off the train under proper conditions, and from aught appearing in the count, the conditions were not improper.-Haley v. K. C., M. & B. R. R. Co., 113 Ala. 640. There was no error in sustaining the demurrer to the count. Affirmed. Alabama Great Southern Railroad Co. v. Shahan. Action against Railroad Company to recover Damages caused by an Overflow. 1. Action against a railroad company for defective culvert; sufficient allegations of negligence.—In an action against a railroad company to recover damages for injuries done to plaintiff's storehouse and his stock of merchandise, caused by an overflow, a complaint which, after averring that the plaintiff's said storehouse was situated near an embankment erected by the defendant railroad company along its right of way, under which there was constructed a culvert maintained for the passage of water in time of rain, then avers that said culvert was insufficient for the passage of water during rainfalls, and that the defendant negligently allowed said culvert to fill partially by the washing of sand and loose rock in it, which further obstructed the free passage of water through said culvert, by reason of which said negligence on the part of the defendant the water from said culvert and embankment backed over and flooded the plaintiff's storehouse, causing the injuries complained of, sufficiently avers negligence on the part of the defendant. 2. Same; same; misjoinder of causes of action.-In an action to recover damages for injuries to plaintiff's storehouse and stock of merchandise, caused by the negligence of the defendant in the construction and maintenance of a culvert, a count of the complaint which avers injuries to the plaintiff resulting from several separate and distinct overflows, is demurrable for improperly joining several separate and distinct causes of action. APPEAL from the Circuit Court of Etowah. This was an action brought by the appellant. W. P. [Alabama Great Southern Railway Co. v. Shahan.] Company. The complaint contained two counts, the substance of which is sufficiently stated in the opinion. To the first count of the complaint the defendant demurred upon the following grounds: "1st. Said first count fails to show that any duty rested upon defendant to provide for the discharge of water from plaintiff's land. 2d. Said first count shows on its face that there was no natural water course for which defendant was under any duty to provide a way of escape. 3d. Said first count of complaint fails to show that the land which was occupied by defendant's road-bed, tunnel and right of way was burdened with the servitude of providing an outlet for the water which is alleged to have injured plaintiff. 4th. Said first count fails to show that it was the duty of defendant to provide for the passage of water in time of rainfall, through said culvert. 5th. Said first count fails to aver that the storehouse was erected before the railroad embankment or culvert. 6th. Said first count shows on its face that a recovery for the injuries which occurred in March, 1891, is barred by the statute of limitation of one year, and said first count fails to distinguish or separate these injuries from the other injuries referred to in said first count of complaint. 7th. Said first count contains several distinct causes of action. 8th. Said first count seeks to recover in same count for injuries which occurred in March, 1891, October, 1891, February, 1892, March, 1892, and August, 1892. 9th. Said first count shows on its face that defendant had acquired a right of way authorizing the construction of said embankment. and culvert and fails to show any additional burden has been placed on the land." To the second count, the defendant demurred upon the same grounds as were assigned to the first count, and the following additional grounds: "10th. Said second count fails to show that it was the duty of defendant to prevent the drainage from said culvert on the opposite side of the mouth of said culvert from filling up with sand and loose rock and other obstacles which obstructed the free flow of water from said culvert. 11th. Said second count fails to show that the injuries complained of resulted from any breach of duty on the part of defendant." These demurrers were overruled. Thereupon the defendant pleaded the general |