Louisville & N.R. Co. v. Brown

Citation121 Ala. 221,25 So. 609
CourtSupreme Court of Alabama
Decision Date04 April 1899
PartiesLOUISVILLE & N. R. CO. v. BROWN.

Appeal from circuit court, Mobile county; William S. Anderson Judge.

This was an action brought by Henry H. Brown, as administrator of the estate of James L. Brown, deceased, against the Louisville & Nashville Railroad Company, to recover damages for the death of plaintiff's intestate, who was a brakeman on defendant's road, and who was killed on November 6, 1890, while engaged in switching a car on defendant's track. The court, at the request of the plaintiff, among others, gave to the jury the following written charges: (b) "The court charges the jury that even if James L. Brown knew of the rule in question, and violated it, and even if he was guilty of contributory negligence, this would constitute no defense to the fifteenth and sixteenth counts of the complaint, if the plaintiff has proven the allegations of these counts." (c) "The court charges the jury that, if the plaintiff has satisfied you of the truth of the allegations of the fifteenth or of the sixteenth counts of the complaint, then you must find for the plaintiff, whether James L. Brown was guilty of contributory negligence or not, and whether he knew of and violated the rule of the defendant or not." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give the several charges requested by it; but it is not necessary to set out in detail the charges requested by the defendant and refused by the court. There were verdict and judgment for the plaintiff, assessing his damages at $6,000. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. Reversed.

Thos G. Jones, for appellant.

Harry T. Smith, for appellee.

McCLELLAN C.J.

The complaint originally contained nineteen counts. At the trial below all but five counts were stricken out or withdrawn, and the trial was had upon these five, numbered respectively 9 11, 15, 16, and 19. They each count upon the wrong of one McDonald, a fireman, as of a person at the time in the charge and control of an engine. The ninth count avers that plaintiff's intestate, James L. Brown, "was killed by reason of the fact that while he was upon defendant's track, between the tender of the engine and a box car, engaged in the performance of his duties as a brakeman in uncoupling said engine from said box car, and while he, the said fireman, knew that said Brown was in such perilous position, and while he knew that the engineer was moving, or about to move, said engine towards the said Brown with such force and violence as to greatly endanger his life, he, the said fireman, failed to notify said engineer of the said perilous position of said Brown, although it was his duty as such fireman to have so notified said engineer, and by reason of said failure on the part of said fireman said engineer ran said train back upon said Brown with such force and violence as to throw him to the ground, and kill him." The eleventh count avers that "Brown was killed by reason of the fact that while he was about to go upon defendant's track between said engine and car for the purpose of uncoupling them, as was his duty, said fireman negligently allowed said engineer to remain unaware of the fact that said Brown was about to go between said engine and car, although he, said fireman, well knew said fact, although it was his duty as such fireman to have informed the engineer of said perilous position of said Brown, and by reason of all which said engineer backed his train against said Brown, and killed him." The fifteenth count ascribes the casualty to the fact that Brown, in the discharge of his duties, was between the tender and a car for the purpose of uncoupling them; that the fireman knew this, and knew also that the engineer was not aware of Brown's perilous position; and that, although it was the fireman's duty to have informed the engineer of Brown's position, yet he nevertheless failed to do so, and in consequence of such failure the engineer backed his train against Brown, and killed him. The sixteenth count avers that Brown was killed by reason of the fact that, "although he was in a perilous position in the performance of his duties, to wit, between said engine and said car, and although this fact was unknown to the engineer and was well known to said fireman, and although said fireman knew that it would greatly imperil the life of said Brown for the engineer to continue to back said train, and although it was the duty of such fireman to have so informed said engineer, he nevertheless failed to inform his said engineer of the said perilous position of said Brown, by reason of which the engineer backed his train against said Brown, and killed him." The averment as to the cause of Brown's death in the nineteenth count is as follows: "Said Brown was killed by reason of the fact that at the time when he was about to go between the tender of said engine and one of the cars attached thereto for the purpose of uncoupling them, he, the said Brown, signaled for slack, and it was the duty of said fireman upon said engine to communicate said signal to said engineer, but said fireman, well knowing that Brown was about to go or had gone between said tender and car for the purpose of uncoupling them, and that it would endanger his life to run said tender back further than was necessary to give slack thereto, and well knowing that the engineer was not aware of the position of said Brown, and being charged with the duty of communicating to the engineer the signal given by said Brown, negligently communicated a wrong signal to said engineer, and instructed him to back up instead of give slack, by reason of which said engineer moved said engine and tender a greater distance than was proper for the purpose simply of giving slack, by reason of which said Brown was stricken to the ground and killed." To each of these counts the defendant pleaded not guilty and contributory negligence. The plaintiff thereupon moved the court to strike out the pleas of contributory negligence on the ground that each of the counts of the complaint charges "that the injury arose from conduct on the part of the servants of the defendant which was the equivalent to wanton or intentional wrong, and the plea of contributory negligence cannot, therefore, be pleaded as a defense to either of said counts, or to the whole complaint containing said...

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64 cases
  • Duncan v. St. Louis & S.F.R. Co.
    • United States
    • Alabama Supreme Court
    • June 13, 1907
    ... ... a count charging willful or wanton injury. Louisville & ... Nashville R. R. Co. v. Brown, 121 Ala. 221, 25 So. 609; ... Louisville & Nashville R. R ... ...
  • Memphis & C.R. Co. v. Martin
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    ... ... 1006, 1012, citing Tanner's Ex'r v ... Railroad Co., 60 Ala. 621; Railroad Co. v ... Brown, 121 Ala. 221, 25 So. 609; Railway Co. v ... Lamb, 124 Ala. 172, 26 So. 969. The giving of the ... ...
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    • November 8, 1923
    ... ... Southern Railway Co. v. Stewart, 153 ... Ala. 133, 45 So. 51; L & N. R. R. Co. v. Brown, 121 ... Ala. 221, 25 So. 609; A. G. S. R. R. Co. v ... McWhorter, 156 Ala. 269, 47 So. 84; A ... jurors were former employees of the Louisville & Nashville ... Railroad who, at the time of the trial, were out on the ... general shopmen's ... ...
  • Herring v. Louisville & N.R. Co.
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    • December 16, 1915
    ... ... & ... P. Co., 149 Ala. 529, 43 So. 33; Duncan v. St. L., ... etc., Ry. Co., 152 Ala. 118, 44 So. 418; L. & N.R.R. Co ... v. Brown, 121 Ala. 221, 25 So. 609." ... These ... cases were followed in the case of Ala. Gt. So. R.R. Co ... v. Smith, 178 Ala. 613, 59 So ... ...
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1 books & journal articles
  • Exploring Wantonness
    • United States
    • Alabama State Bar Alabama Lawyer No. 74-1, January 2013
    • Invalid date
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