74 Ala. 443 (Ala. 1883), East Tennessee, V. & G.R. Co. v. Clark

Citation:74 Ala. 443
Opinion Judge:STONE, J.
Party Name:East Tenn., Va. & Geo. Railroad Co. v. Clark.
Attorney:PETTUS & DAWSON, with whom was D. T. CASTLEBERRY, for the appellant. PARSONS & PARSONS, contra
Court:Supreme Court of Alabama
 
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Page 443

74 Ala. 443 (Ala. 1883)

East Tenn., Va. & Geo. Railroad Co.

v.

Clark.

Supreme Court of Alabama

December Term, 1883

Action to recover Damages for Personal Injuries.

APPEAL from the Circuit Court of Talladega.

Tried before the Hon. LEROY F. BOX.

Where the court is not requested to charge as to contributory negligence at the trial, its failure to do so is not error.

This action was brought by Israel H. M. Clark against the appellant, a corporation created under the laws of Alabama and Tennessee, to recover damages for personal injuries caused by being knocked down and run over by one of the defendant's trains of cars, on the night of March 26th, 1881, whereby his right hand was mashed, and so badly injured that several of his fingers were necessarily amputated; and was commenced on the 14th March, 1882. The defendant pleaded not guilty, "in short by consent," and a special plea averring contributory negligence on the part of the plaintiff; and issue was joined on both of these pleas. At the time the accident occurred, the plaintiff was returning from Talladega to his home in Clay county, and was camping for the night, with Ben. Clemens and wife, near the railroad at "Parsons' Crossing;" he had been driving a wagon drawn by three oxen, and, in unyoking them, one of the oxen got loose, and crossed the railroad track. The plaintiff, testifying as a witness for himself, thus described the accident: "I went in pursuit of the ox, and found him 50 or 75 yards beyond the railroad, in the public road. I got the ox, and caught hold of the line on his head, and drove him back to the railroad. When I got to the railroad, I did not see the train at all, until it was right on me, and knocked me down. I saw the ox jump, and then the train run over me, and cut off my hand. I was knocked senseless, and did not know any thing more until the doctor was standing over me. After we stopped to camp, a train went down towards the depot, which had its headlight burning, and which rang the bell as it approached the crossing. The train that struck me was going north, and had no head-light burning, and did not ring the bell, nor blow the whistle, when approaching the crossing. I heard a train rattling and running just as I approached the track, but thought it was the train at the depot. I did not stop as I approached the railroad track. I did not see the train until it was right at me and...

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