Peters v. Southern Ry. Co.

Citation33 So. 332,135 Ala. 533
PartiesPETERS v. SOUTHERN RY. CO.
Decision Date15 January 1903
CourtAlabama Supreme Court

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by Joseph A. Peters against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Bowman & Harsh, for appellant.

Smith &amp Weatherly and John London, for appellee.

DOWDELL J.

This is an action to recover damages for personal injuries received by the plaintiff, appellant here, from being run against and struck by defendant's locomotive. The complaint contained three counts; the first charging wanton or willful injury and the second and third alleging simple negligence. In the second count the place of the accident is alleged to have been "at or near Gate City," and while plaintiff was crossing defendant's track, without averring that Gate City was a city, town, or village. In the third count the place of the accident is alleged to have been in a "certain village, town, or city known as 'Gate City' "; and in this count it is also averred that the engineer or other person having control of said locomotive "negligently failed to blow the whistle or ring the bell at short intervals on entering into or while moving within or passing through said village, town, or city and as a proximate consequence thereof said engine or train ran upon or against plaintiff while plaintiff was engaged in or about crossing said railway in said city, town, or village, and plaintiff suffered," etc. The pleas of the defendant were not guilty to all of the counts, and to the second and third contributory negligence. On these issues the case was tried, and upon the conclusion of the evidence, at the request of the defendant in writing, the court gave the general charge to find for the defendant, and verdict and judgment were accordingly rendered. No questions are presented on the pleadings, the only error assigned being the giving of the general charge.

On the trial the only evidence adduced was that of the plaintiff and his witnesses, the defendant offering none. The evidence, without conflict, shows: That the plaintiff walked on the track of the defendant at a private footpath in the outskirts of Gate City, a town or village of about 1,200 or 1,500 population, and before he got out of the way of an approaching passenger train, was struck by the head block of the locomotive, and injured. That the path led across defendant's track to the Reed House, on the south side, where plaintiff lodged. That besides this house there were two other houses on that side, about 75 or 100 yards apart. There is neither averment nor proof as to the extent of the use of the path, or to numbers or frequency of persons crossing; nor any averment or proof as to knowledge on the part of defendant's engineer or other person in control of and operating the locomotive of the use of the foot way or path. That the train which struck the plaintiff was running at the rate of 45 or 50 miles an hour. There is no pretense that the act of running against and injuring the plaintiff was willful. On the contrary, the plaintiff's undisputed evidence showed that the engineer was at the time looking back in an opposite direction, and therefore did not see or know of plaintiff's presence on the track in front of the locomotive. And under the undisputed facts we are unable to see how it can be said that the injury was wantonly inflicted unless it can be affirmed as matter of law that the speed of 50 miles an hour was of itself evidence of wantonness, and this, of course, cannot be stated as the law. It has been repeatedly held, before one can be convicted of wantonness the facts must show that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act, or omitted some known duty, which produced the injury. Railroad Co. v. Martin, 117 Ala. 367, 23 So. 231; Burson v. Railroad Co., 116 Ala. 198, 22 So. 457; Electric Co. v. Bowers, 110 Ala. 328, 20 So. 345; Railroad Co. v. Hall, 105 Ala. 599, 17 So. 176; Pipe Works v. Dickey, 93 Ala. 418, 9 So. 720; and other cases might be cited. There was no evidence of knowledge on the part of defendant's engineer, or, as for that matter, of any other person on the locomotive, of plaintiff's peril, or presence on the track, or knowledge of existing conditions at the time and place of the accident that injury would likely or probably result to the plaintiff, or any one else, from the speed at which the train was being run. The general charge for the defendant under the first count we think was properly given.

The next consideration is whether the general charge should have been given on the second and third counts, which counted on simple negligence, and on the issue of contributory negligence, raised by the plea to those counts. The determination of this question is not wholly free from difficulty. We have held the rule to be that "the affirmative charge should never be given when there is any material conflict in the evidence, or when there is evidence which authorizes a reasonable inference of facts unfavorable to a right of recovery by the party asking the charge." White v. Farris, 124 Ala. 470, 27 So. 263. There was evidence tending to show that the train was being run within the limits of a city, town, or village without the ringing of the bell or blowing the whistle at short intervals, as required by the statute. Code, § 3440. This was negligence on the part of defendant's employés, and for any injury resulting to the plaintiff as a proximate consequence of such negligence the defendant would be liable, unless the plaintiff was himself guilty of negligence which contributed proximately to his hurt. And this brings us to a consideration of the main question in the case, and that is whether the facts show without material conflict that the plaintiff was guilty of contributory negligence. The facts without dispute show that the plaintiff was injured while in the act of crossing the defendant's track along a private footpath which led across said track. While the plaintiff had the right to cross the...

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