This case was submitted to the jury under issues consequent upon the averments of count 3 alone. The judgment below is reversed upon the authority of Ala. Fuel Iron Co. v. J. A. Vaughan, 205 Ala. 589, 88 So. 857.
It may be remarked that count 3 was defective in the particular that it failed to aver a duty on defendant to which the generally alleged negligence of the defendant was referable. T. C. I. Co. v. Smith, 171 Ala. 251, 55 So. 170. There is no intimation, even, in the count that these parties were related riparian proprietors, out of which relation there arose certain rights, duties, and responsibilities.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C J., and SOMERVILLE and THOMAS, JJ., concur.