Louisville & N.R. Co. v. Sunday
Decision Date | 23 January 1947 |
Docket Number | 3 Div. 465. |
Citation | 248 Ala. 597,28 So.2d 796 |
Court | Alabama Supreme Court |
Parties | LOUISVILLE & N. R. CO. v. SUNDAY. |
Steiner Crum & Weil, of Montgomery, and McMillan, Caffey & McMillan, of Brewton, for appellant.
H. C. Rankin, of Brewton, for appellee.
The following charges were refused to defendant:
Defendant excepted to the following portion of the oral charge:
'As applicable to this case, it is the law that if a person, or the one in control of the train knows that it is approaching a populous crossing in a town or village or city, or a crossing that is frequently used day and night by the public and the operator of this train knows that and knows that some person is likely and probably will be on the crossing and receive injury, and with such knowledge, and in disregard of the rights of the public, persists and enters upon the crossing without giving proper signals--ringing his bell or blowing his whistle or keeping a lookout to warn the public--that within itself is wanton negligence, though the operator may have no knowledge of the peril of the person injured.'
This is an action by appellee as the administrator of the estate of Mary Ann Sunday, deceased, under § 123, Title 7, Code of 1940, against the appellant, predicated on 'alleged wrongful act, omission or negligence of the defendant, its agents, servants or employes, while acting within the line and scope of their authority, causing said death.'
The amended complaint upon which the case was submitted to the jury contained six counts: The first, third and fourth ascribing said death to the negligence of said agents or servants of defendant, acting within the line and scope of their employment; the second ascribing the death to the willful and wanton conduct of 'its (defendant's) agents, servants or employees, then and there acting in the line of their duty as such.'
The fifth count avers that while 'The plaintiff's intestate, Mary Ann Sunday, deceased, was on or upon Palafox Street, which was a public highway or street in Flomaton Escambia County, Alabama, and at a place on said public highway or street where said highway or street crosses the railroad tracks of the defendant, Louisville & Nashville Railroad Company, a corporation, the same being a public road crossing at said place and at said time and place a locomotive engine or train controlled or operated by the defendant was caused to collide with the plaintiff's intestate, Mary Ann Sunday, deceased, who was thereby killed and the plaintiff alleges that his said intestate, Mary Ann Sunday, deceased, who was the plaintiff's mother, was so killed as the proximate consequence of the negligence of the defendant in that the defendant negligently caused said locomotive engine or train to collide with the plaintiff's intestate and killed her at the time and place aforesaid.'
The sixth count ascribes the death to the negligence of the defendant's agent or servant in charge of the locomotive after said servant discovered the peril of plaintiff's intestate.
The defendant pleaded the general issue, not guilty, to all of said counts and contributory negligence to the simple negligence counts.
The defendant had a series of eight tracks lying between its station on the south and the Town of Flomaton on the north. The place of the alleged injury and death was on the street-crossing leading from the defendant's station house into the Town of Flomaton. Said intestate was using the part of the crossing ordinarily used by pedestrians. The crossing was thirty feet wide and the place at which plaintiff's intestate was run upon and killed was on the northerly side of this street crossing, where the tender of the backing locomotive ran upon her just as she stepped across the first rail of the eighth track and as the tender entered the margin of the street. Some of these tracks led to the defendant's yards where it supplied coal and water to its locomotives. The locomotive and tender were on down grade and were coasting and not making much noise. As to whether the bell was ringing, the evidence was in conflict. The catastrophe occurred in broad daylight and the deceased was no discovered by anyone until just immediately before she was run against and killed, the trucks of the tender passing over her body and the engine stopping before the forward trucks of the tender reached her. She was killed instantly with her body lying between the rear and front trucks of the tender.
As the evidence tends to show, she was on foot and was proceeding north. When discovered by the engineer on another train, which had stopped north of the crossing and was starting ahead, the intestate was stepping across the first rail of the last of the eight tracks. He blew his whistle and the engineer on the other engine immediately applied the brakes and stopped his engine, which was moving some three to four miles per hour.
There was evidence tending to show there was no one on the locomotive which caused the death except the engineer and he was on the north side, sitting in his seat, but...
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