Louisville & N.R. Co. v. Sunday, 3 Div. 465.

• Court: Supreme Court of Alabama
• Writing for the Court: BROWN, Justice.
• Citation: 248 Ala. 597,28 So.2d 796
• Docket Number: 3 Div. 465.
• Decision Date: 23 January 1947
• Parties: LOUISVILLE & N. R. CO. v. SUNDAY.

28 So.2d 796

248 Ala. 597

LOUISVILLE & N. R. CO.
v.
SUNDAY.

3 Div. 465.

Supreme Court of Alabama

January 23, 1947

[248 Ala. 598] [28 So.2d 797]

Steiner, Crum & Weil, of Montgomery, and McMillan, Caffey & McMillan, of Brewton, for appellant.

[248 Ala. 599] H. C. Rankin, of Brewton, for appellee.

[248 Ala. 598] The following charges were refused to defendant:

'2. The court charges the jury that if you believe the evidence in this case, you cannot find for the plaintiff under the first count of the complaint.'

'3. The Court charges the jury that if you believe the evidence in this case you cannot find for the plaintiff under the second count of the complaint.'

'5. The court charges the jury that if you believe the evidence in this case you cannot find for the plaintiff under the fourth count of the complaint.'

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.'

BROWN, Justice.

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...