29 So. 562 (Ala. 1900), Louisville & N.R. Co. v. Stewart

Citation:29 So. 562, 128 Ala. 313
Opinion Judge:SHARPE, J.
Attorney:Thos, G. & Chas. P. Jones and Alex C. Birch, for appellant. B. M. Allen, for appellee.
Case Date:December 20, 1900
Court:Supreme Court of Alabama

Page 562

29 So. 562 (Ala. 1900)

128 Ala. 313




Supreme Court of Alabama

December 20, 1900

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Mrs. A. M. Stewart against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

This was an action brought by Mrs. A. M. Stewart against the Louisville & Nashville Railroad Company to recover damages for personal injuries sustained by the plaintiff while riding a bicycle, which injuries were alleged to have been caused by reason of the negligence of the defendant or its employés. The complaint, as filed, contained 11 counts; a twelfth count being added by way of amendment. Demurrers were sustained to the first count, and on motion of the plaintiff the court struck the ninth count. The court, at the written request of the defendant, gave the general affirmative charge as to the third, fifth, tenth, and eleventh counts. In the second count the plaintiff alleges that while in the act of crossing Eighteenth street, a public highway much traveled by both pedestrians and vehicles, said street being crossed at grade by a railroad track of the defendant, she was run into and injured by a switch engine. The specific act of negligence averred in this count is "that said negligence consisted in running said cars and said locomotive at too great a rate of speed." The negligence averred in the fourth count, on the same state of facts as above set out, is "that said negligence consisted in running said cars and locomotive across Eighteenth street crossing without taking proper precautions to prevent injuries to plaintiff." The sixth count is based on the alleged violation of a section of the City Code of Birmingham providing, under a penalty, that railroads operating tracks over certain named crossings (among them, Eighteenth street crossing) keep electric lights burning all night, and watchmen or flagmen on guard day and night. The negligence averred in this count is "that said violation of said section consisted in not keeping a watchman or flagman on guard at Eighteenth street crossing at the time plaintiff was struck as aforesaid." The seventh count avers that a section of the City Code of Birmingham providing that it shall be the duty of flagmen placed at railroad crossings to at all times remain in full view of persons approaching said crossings, whether they be approaching on foot or in vehicles, and to signal them to pass over if they can do so, or to stop if a train is too near to admit of sale passage, was violated by the defendant, and that said violation of said section "consisted in defendant's flagman at said crossing not duly and properly signaling said defendant to stop when said locomotive and cars were approaching too near to admit of a safe passage." The eighth count, as amended to meet the demurrers of the defendant, is based on the alleged violation of a section of the City Code of Birmingham providing that no railroad company shall run any locomotive at a rate of speed greater than eight miles per hour when going forwards, or four miles per hour while going backwards, or run said engine without a headlight thereon, or without giving the proper signals by ringing the bell, etc. The plaintiff averred that the defendant violated this section by "running a locomotive engine within the city limits at and over said crossing at a greater rate of speed than four miles an hour when running backward, and that said locomotive engine was running backward at said time and place at a greater rate of speed than four miles per hour." The twelfth count is based on the alleged violation of the section above mentioned, the breach averred being "that the violation of said ordinance consisted in permitting or suffering a locomotive or train to run in said city at said time and place without causing the usual signals to be given continuously by ringing the bell or otherwise." The defendant interposed demurrers to all of the foregoing counts, except the twelfth, assigning substantially the following grounds: That the allegations of negligence in each of said counts are vague, indefinite, and uncertain; that wherein defendant was negligent in the premises is not alleged with sufficient clearness; and that it appears from the allegations of said counts that the negligence therein complained of was not the proximate cause of the alleged injury. These demurrers were overruled, except as to the eighth count, which count was amended to meet them. The defendant pleaded the general issue and several special pleas, in which it set up the contributory negligence of the plaintiff. To these special pleas demurrers were separately and severally interposed. The ruling upon these demurrers, as set forth in the judgment entry, was as follows: "The demurrers to the fifth, sixth, and seventh pleas are by the court heard, considered, and overruled." To the several special pleas the plaintiff filed the following replications: "(1) Plaintiff takes issue on each of said pleas. (2) For further replication, plaintiff says that she was crossing the tracks, where she was injured, by the invitation of the defendant. (3) That the defendant's watchman at said crossing signaled plaintiff to cross at the time and place when and where said injuries occurred. (4) That plaintiff could not, by stopping, looking, and listening, have seen or heard the engine which caused said injuries." To these replications the defendant filed demurrers, assigning several grounds. The rulings upon these demurrers, as set forth in the minute entry, were as follows: "And the demurrer to the replications are by the court heard, considered, and overruled."

The accident to the plaintiff occurred at the Eighteenth street crossing in the city of Birmingham, where said street is intersected by several railroad tracks. The location of these tracks is sufficiently shown in the opinion: About half past 7 on the evening of September 3, 1897, the plaintiff, in company with her son Frank and Mrs. McPherson, all of them riding bicycles, attempted to cross Eighteenth street at the above-described point; the party coming from the south side towards the north side. The testimony for the plaintiff tends to show: That after crossing one track, and while 50 feet from a flagman, they called for a signal, being within 10 feet of the flagman when they received a signal for them to pass over, and that at the time he gave the signal the flagman had both a white and red light in his hand. On one of the tracks outside of the south fence there was a string of box cars, which plaintiff, her son, and Mrs. McPherson contend obstructed the view of the passenger train which was approaching from the west, until said track had been passed. That this passenger train-the Montgomery Accommodation-was running from 10 to 15 miles per hour, and that they were within 20 feet of it when they first saw it. The plaintiff was about 4 feet ahead of her son, Mrs. McPherson being directly behind young Stewart. That they crossed over safely in front of the passenger train, which barely missed them, and did not discover the switch engine which caused the accident until they had crossed the passenger track. Young Stewart dismounted within 5 feet of the...

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