Gulf, M. & O.R. Co. v. Williams

• Decision Date: 20 January 1949
• Docket Number: 5 Div. 460.
• Citation: 38 So.2d 334,251 Ala. 516
• Court: Alabama Supreme Court
• Parties: GULF, MOBILE & OHIO R. CO. v. WILLIAMS.

38 So.2d 334

251 Ala. 516

GULF, MOBILE & OHIO R. CO. v. WILLIAMS.

5 Div. 460.

Supreme Court of Alabama

January 20, 1949

Gerald & Gerald, of Clanton, and Steiner, Crum & Weil, of Montgomery, for appellant.

Omar L. Reynolds and Reynolds & Reynolds, all of Clanton, for appellee.

Count B. is as follows:

The plaintiff, Libby Williams, who sues as administratrix of the estate of Chester Ottis Williams, deceased, claims of the defendant the sum of $50,000.00 and damages for that on to-wit, October 26, 1942, the defendant was engaged in the operation of a locomotive with a train of cars attached in the City of Montgomery, Alabama, and on said date the plaintiff's intestate, Chester Ottis Williams, was in a place of danger upon or near to the track where the defendant was operating said locomotive and train of cars or, to-wit near defendant's yard station or yard depot located near First Street in said City of Montgomery, Alabama, and the defendant's servants or agents, then and there acting within the line and scope of the duties of their employment were engaged in and about the business of operating said locomotive and train of cars; and the plaintiff alleges that while her said intestate was on said railroad tracks as aforesaid, and in a place of danger and a situation of peril, which the servant, agent or employee or other person in charge and control of said engine and train was conscious of and knew, and knew in time to have prevented the injury to plaintiff's intestate, but that said engineer or other person in charge or in control of said train, after he knew or became conscious of the perilous situation in which the plaintiff's intestate was at the time, and acting within the line and scope of his employment, failed to exercise due care and diligence to avoid the said injury to plaintiff's intestate, as a proximate consequence of which plaintiff's intestate was run over by

said train and killed to the plaintiff's great damages as aforesaid. The demurrer contained these grounds, among others:

(B) For that it is not averred in said count that Plaintiff's intestate was injured and killed after he was discovered in a position of peril by the Defendant, its agents, servants or employees.

(C) For that no facts are averred in said count which show, as a matter of law, that the Plaintiff's intestate was discovered in a position of peril by the Defendant or its agents, servants, or employees.

(D) For that no facts are averred in said count which show, as a matter of law, that any discovery of the peril of Plaintiff's intestate was made by the Defendant, its agents, servants or employees before the time of his injury and death.

(E) For that no facts are averred in said count which show that the persons making the discovery of the Plaintiff's intestate in the position of peril, as alleged in said count, was an agent, servant, or employee of this Defendant.

(F) For that it is not averred in said count that the peril of the Plaintiff's intestate was discovered by the Defendant or any agent, servant or employee acting within the line and scope of their employment prior to the time of the injury and death of Plaintiff's intestate.

BROWN Justice.

This is an action on the case by Libby Williams, appellee, who sues as administratrix of the estate of Chester Otis Williams, deceased, against Gulf, Mobile & Ohio Railroad Company, to recover damages for the wrongful death of her intestate. The action is brought under § 123, Code of 1940, Title 7, known as the homicide act, which is designed and intended to punish negligent, wanton or intentional acts causing the death of a person.--Breed v. Atlanta, B. & C. R. Co., 241 Ala. 640, 4 So.2d 315. The right of action which the homicide act creates is a 'new and distinct cause of action, unknown at common law. The cause of action comes into being only upon death from wrongful act.'--Parker v. Fies & Sons, 243 Ala. 348, 350, 10 So.2d 13, 15. The damages recoverable are punitive in their nature to punish the person or corporation for negligently or wrongfully causing the death.--Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann.Cas.1916E, 565. The damages recoverable in such action are in no sense compensatory.

The major facts in this case are without dispute. The evidence shows that plaintiff's intestate, while drunk, and a trespasser on the yards of the defendant railroad company, crawled under one of a cut of cars then being made up into a train by the switching crew in the yards. The said car under which said intestate crawled, from some cause not clear, moved and severed intestate's head from his body, just as his head reached and protruded over the track on the opposite side from which he started over the tracks. The only eye witness to the incident was the companion of said intestate. He testified.

'Well, when we started to leave the station and come on over across the track and got there--mixed up you know in all the railroad tracks--and he said, well I believe I'll go under and get over on the trail out of these railroad tracks, and whenever he started under there, or got under, well the engine either hit the cars that was there with another cut of cars, or the engine--something hit it back there and moved the train of cars, or--the train that was standing rather--moved the cars that he was going under--that he was going under. * * *

'Well, I was down below him, he got down and went under and I started on down below him. Just about the time that I was fixing to go under, the train got--the train engine hit these cars, so I didn't attempt to go under there then. * * * Well whenever he got under the--whenever the engine hit the cars, well--some part of the car that he went under knocked him down under there and his head hit across the rail--him being paralyzed in one hand, he didn't stand much of a chance----.

Well, whenever the train quit rolling, why I felt up under there and found him laying stretched with the track, looking down the track, and I had taken him out from under the train and laid him down between the railroad tracks, the one the train was on and the one next to it. And then I went back to get somebodys help * * *. Well, his head was taken off right through his mouth, round that way, and even with his shoulders,--his head was on one side of the track, on the outside of the track from me. He way just laying looking down the track from the train. * * *.'

The witness on being asked, 'Did you say anything to Williams...