Alabama G.S.R. Co. v. Dobbs

• Citation: 101 Ala. 219,12 So. 770
• Parties: ALABAMA G. S. R. CO. v. DOBBS.
• Decision Date: 03 April 1893
• Court: Supreme Court of Alabama

12 So. 770

101 Ala. 219

ALABAMA G. S. R. CO. v. DOBBS.

Supreme Court of Alabama

April 3, 1893

Appeal from circuit court, De Kalb county; John B. Tally, Judge.

Action by William Dobbs against the Alabama Great Southern Railroad Company to recover for the death of his child, caused by defendant's negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Affirmed.

As originally filed, the complaint contained six counts. Two others were afterwards added by amendment. The first count attributed the death of the plaintiff's child to the wanton, reckless, and intentional negligence of the defendant's employes. In the second count the plaintiff alleges that the accident occurred just below a public crossing, and that on approaching said crossing the engineer did not blow the whistle or ring the bell, as was required by statute. In the third count the negligence complained of was that the engineer did not use all the means within his power known to skillful and careful engineers, to stop the train after the discovery of the child upon the track. In the fourth count plaintiff sought to recover on account of the negligence of the defendant in failing to provide proper brakes and appliances for stopping the train. In the fifth after alleging that the accident occurred about one fourth of a mile from Ft. Payne, a station on defendant's road, the negligence alleged was that the engineer did not blow his whistle or ring the bell before leaving Ft. Payne. In the sixth count the negligence alleged was that the engineer did not blow his whistle or ring the bell before entering or leaving Ft. Payne. The seventh count, which was added by amendment, was substantially the same as the sixth count. In the eighth count the plaintiff averred "that said killing was the result of the negligence of the defendant's employes in the managing and running of said locomotive, train, or cars."

The defendant filed several pleas to the complaint. The first was the general issue to the complaint as a whole, and to each count separately. By the second plea the defendant set up that the accident did not occur at a public crossing; that at the time of the injury complained of the engineer in charge of the locomotive was a skillful and careful man; that said engine was of modern pattern, and had all the improvements and appliances used on locomotives to secure safety in their operation and to avoid injury; that the cars constituting the train had all necessary and sufficient appliances, and had a sufficient number of careful and skillful brakemen to control said train; that up to the time and before the accident the engineer was keeping a proper and vigilant lookout, and doing all things required by law to avoid injury to any person or property; that the said child, by proper and vigilant lookout, could not have been seen until it came upon the track so suddenly and in such close proximity to the engine that the employment of all means known to skillful and careful engineers could not have avoided the injury. As a plea to the third count of the complaint the defendant, in its third plea, alleged that the child came upon the track so suddenly and in such close proximity to the engine that the use and employment of all means in the power of the engineer known to careful and skillful engineers, could not have avoided the injury; and that said locomotive and cars were supplied with all necessary appliances and machinery, and were sufficiently manned; and that the defendant's agents were at the time keeping a vigilant lookout for obstructions on the track, and could not discover the child before it came upon the track. For answer to the fourth count the defendant in plea No. 4, alleged that at the time of the accident the locomotive and cars had all the appliances and machinery known to skillful, engineers and operators of railroads to avoid injury to persons or property, and that said locomotive and train were under the control and management of a skillful and careful engineer, and of careful and skillful brakemen and sufficient in number; and at the time of the accident the engineer was keeping a proper and vigilant lookout for obstructions upon the track; and that as soon as said child was discovered, (and it was discovered as soon as legal diligence could have discovered it,) the engineer reversed the engine, applied the brakes, and the brakemen applied the brakes on the cars, and did all things in their power, known to skillful engineers and brakemen, to avoid the said injury. For answer to the fifth count the defendant, by plea No. 5, set up that the engineer in charge of the train blew the whistle and rang the bell at least one fourth of a mile before reaching the public crossing mentioned in said complaint, and before reaching the station at Ft. Payne, and continued to ring the bell at intervals until he passed said crossing. For further answer to the fifth count of the complaint the defendant, in plea No. 6, set up that the engineer in charge of the engine and train blew the whistle and rang the bell immediately before and at the time of leaving the depot at Ft. Payne. By plea 7 the defendant set up in answer to the sixth count of the complaint that the engineer in charge of the train blew the whistle and rang the bell at short intervals while moving within and passing through the town of Ft. Payne. By the eighth plea the defendant, for further answer to the second, third, fourth, fifth, and sixth counts of the complaint, separately, set up that the negligence of the plaintiff proximately contributed to the injuries of his child. To the seventh count of the complaint, which was added as an amendment, the defendant set up as an answer thereto the first, third, fourth, seventh, and eighth pleas as above set forth. And in answer to the eighth count the defendant set up the first, third, fourth, and eighth pleas.

The plaintiff demurred to the second plea on the grounds-First, that the said plea does not negative the averments to the second count of the complaint, that the injury resulted from the failure of defendant's employe to blow the whistle and ring the bell as required by law; and, second, that said plea does not aver that the engineer did ring the bell or blow the whistle for one fourth of a mile before and while passing the public crossing as required by law. Plaintiff demurred to the third plea on the ground that the said plea did not show that the defendant's engineer could not, by due care and proper lookout, have seen the child in time to have averted the accident. Plaintiff demurred to the third and fourth pleas to the seventh count of the complaint on the ground that they did not negative the averments of the seventh count, that the engineer did not blow the whistle and ring the bell at short intervals on entering into and passing through said town of Ft. Payne, and that the injury resulted from said negligence. The plaintiff demurred to the third and fourth pleas to the eighth count on the grounds-First, that the said plea, while negativing certain grounds of negligence, does not negative all of the particular grounds in which, under the averments of said count, the defendant might have been shown to have been negligent; and, second, because said special pleading is unnecessary and prolix, and tends to mislead and confuse the issue, since the defendant might have had the benefit of such plea under the general issue. The plaintiff also demurred to the eighth plea, and assigned the following grounds: First, that the said plea attempts to ascribe the alleged negligence of the father to the child; second, that said plea fails to aver any contributory negligence on the part of the child; third, said plea does not set up such contributory negligence as will defeat the action; fourth, that said plea does not aver the facts out of which the alleged contributory negligence arises; fifth, said plea does not aver facts, but only legal conclusions; and, sixth, that said plea does not aver that the said negligence on the part of defendant was wanton, intentional, or reckless.

The defendant demurred to the seventh and eighth counts, filed as amendments, and assigned as grounds of the demurrer to each-First, the statute of limitations of one year; and, second, that the action set up in said suit is a departure from the original suit.

The evidence in behalf of the plaintiff and the defendant, as is shown by the bill of exceptions, is sufficiently shown in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the following written charges: (1) "The court charges the jury that if the jury believe from the evidence that the absence of defendant's brakemen, or any of them, caused delay in stopping the train they may look to such fact, if it be a fact, in determining whether or not there was negligence on the part of the defendant." (2) "The court charges the jury that, if the jury believe from the evidence that the child when first discovered was 150 or 175 yards below the engine, they may look to the further evidence of skilled engineers to determine whether or not the train might have been stopped within that distance by servants of defendant in their places of duty." (3) "If the jury believe from the evidence that the engineer did all in his power to avert the accident, but any one of the brakemen was negligent in the discharge of his duties, then...