Alabama G.S.R. Co. v. Burgess

• Decision Date: 09 December 1897
• Citation: 22 So. 913,116 Ala. 509
• Parties: ALABAMA G. S. R. CO. v. BURGESS.
• Court: Alabama Supreme Court

22 So. 913

116 Ala. 509

ALABAMA G. S. R. CO. v. BURGESS.

Supreme Court of Alabama

December 9, 1897

Appeal from circuit court, Etowah county; J. A. Bilbro, Judge.

Action by L. F. Burgess administrator of the estate of Ora Burgess deceased, against the Alabama Great Southern Railroad Company for the death of plaintiff's intestate, caused by defendant's negligence. From a judgment for plaintiff defendant appeals. Reversed.

The complaint, as amended, contained five counts. The first count was withdrawn by plaintiff. The remaining counts were as follows: "(2) Plaintiff claims of defendant fifty thousand dollars as damages, for that defendant, on or about the ___th day of August, 1894, was engaged in the business of a common carrier of passengers, propelling cars by steam, in Etowah county, Alabama, and then and there willfully wantonly, or intentionally, through its agents or servants ran its engine and cars upon and against plaintiff's intestate, who was then and there a minor between three and four years of age, and killed her; hence this suit. (3) Plaintiff claims of defendant fifty thousand dollars as damages, for that defendant, on or about the ___th day of August, 1894, was engaged in the business of a common carrier of passengers, propelling cars by steam, in Etowah county Alabama, and whilst then and there engaged as such common carrier defendant's servants and agents, after discovering that plaintiff's intestate was in danger of injury, failed to exercise due care and skill to avoid injuring her, when such care and diligence might have avoided her injury, whereby plaintiff's intestate was killed by being struck by the engine and cars of defendant, owing to the negligence of defendant as aforesaid. (4) Plaintiff claims of defendant fifty thousand dollars as damages, for that defendant, on or about the ___th day of August, 1894, was engaged in the business of a common carrier of passengers, propelling cars by steam, in Etowah county, Alabama, and then and there willfully, wantonly, or intentionally, through its agents or servants, ran its engine and cars upon and against plaintiff's intestate, who was then and there a minor between three and four years of age, and killed her, in Etowah county, Alabama; hence this suit. (5) Plaintiff claims of defendant fifty thousand dollars as damages, for that whereas, on or about the ___th day of August, 1894, defendant was engaged in the business of a common carrier of passengers in Etowah county, Alabama, propelling cars by steam in said county and state, and whilst so engaged as said common carrier defendant's agents and servants in charge of its train, after discovering that plaintiff's intestate was in danger of injury, negligently failed then and there to use reasonable care and diligence to avoid injuring said intestate, when the use of such reason able care and diligence might have prevented her injury, whereby plaintiff's intestate was then and there killed by the engine or cars of defendant striking her, and her death was caused by the failure of defendant to use reasonable care and diligence to avoid injuring said intestate after discovery of her danger of injury, when the use of such reasonable care and diligence might have avoided said intestate's injury; hence this suit."

To the second count the defendant demurred upon the following grounds: "(1) Said first count shows on its face that plaintiff's intestate was a trespasser on defendant's track, and fails to aver wanton, willful, or intentional negligence. (2) Said count fails to account for the presence of plaintiff's intestate on the track, and fails to aver that the injuries were wantonly, willfully, or intentionally inflicted. (3) Said count does not aver any negligence occurring after the discovery of the danger of plaintiff's intestate." To the fifth count the defendant demurred upon the following grounds: "(1) Said count does not state what proper means to avoid the injury were not used by defendant's servants or agents. (2) Said count does not sufficiently inform the defendant against what it is called to defend. (3) Said count is too uncertain, vague, and indefinite in its statement of the alleged negligence of defendant." The court overruled these demurrers, and issue was joined upon the plea of not guilty, and the second, third, fourth, and fifth counts of the complaint.

The evidence for the plaintiff tended to show that the plaintiff's intestate, Ora Burgess, who was killed on August 4, 1894, by being run over by a train of the defendant, was at the time she was killed three years and three months old; that she and her little brother were, at the time of the accident, upon the track of the defendant's road; that from the place of the accident south the track was straight for a distance of about 700 yards; that the child was killed by a northbound train, between 3 and 4 o'clock in the afternoon, and the day was clear and bright. The evidence for the defendant tended to show that the engineer saw objects upon the track a distance of between 500 and 700 yards from the place of the accident, but that he did not recognize that it was a child until he was within 40 or 50 yards of it; that thereupon he applied the brakes, reversed the engine, and did all things possible to stop the train; that the train was going at the rate of 40 miles an hour, and that it was impossible to stop the train before the child was run over; and that the injury could not have been avoided after the engineer discovered the child upon the track. The facts of this case, as to the circumstances of the injury, are substantially the same in detail as those disclosed in the case of Railroad Co. v. Burgess, which is reported in 22 So. 169, and reference is here made to that case.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: (1) "The court charges the jury that if they find from the evidence that the facts stated in count No. 2 are true, their verdict must be for the plaintiff." (2) "The court charges the jury that, if they find from the evidence that the facts stated in count No. 3 are true, their verdict must be for the plaintiff." (3) "The court charges the jury that, if they find from the evidence that the facts stated in count No. 4 are true, their verdict should be for the plaintiff." (4) "The court charges the jury that, if they find from the evidence that the facts stated in count No. 5 are true, their verdict should be for the plaintiff." (5) "The court charges the jury that whether Mr. and Mrs. Burgess, or either of them, were guilty of negligence in allowing the child to be there, has no bearing in this case, and will not be considered by the jury in fixing the amount of the verdict, should they find for the plaintiff." (6) "The court charges the jury that if they find from the evidence that the engineer, after discovering the danger of the child, negligently failed to use reasonable care to avoid the injury, and the use of such reasonable care would have prevented her injury, the law denominates this wanton, willful, or intentional negligence, and the defendant would be liable." (7) "The court charges the jury that all that is meant in this case by 'wanton, willful, or intentional negligence' is the conscious failure, on the part of the defendant, to use reasonable care, under the circumstances, to avoid the injury, after discovering the danger of the child, if they find from the evidence there was such failure, and the injury resulted therefrom." The defendant separately excepted to the court's giving of each of these charges, and also, separately excepted to the refusal to give the following charges requested by it: (8) "The court charges the jury that under the evidence in this case there can be no recovery for willful, wanton, or intentional negligence." (9) "The court charges the jury that the plaintiff can recover nothing for the value of...