Alabama G.S.R. Co. v. Hamilton

• Decision Date: 18 December 1902
• Citation: 33 So. 157,135 Ala. 343
• Parties: ALABAMA G. S. R. CO. v. HAMILTON.
• Court: Alabama Supreme Court

33 So. 157

135 Ala. 343

ALABAMA G. S. R. CO. v. HAMILTON.

Supreme Court of Alabama

December 18, 1902

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Fred D. Hamilton, as administrator of Alfred Wicks deceased, against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action by Fred D. Hamilton, as administrator of the estate of Alfred Wicks, deceased, to recover damages for the alleged wanton or intentional killing of plaintiff's intestate. The trial was had on the plea of the general issue. The evidence showed that Wicks was killed by appellant's passenger train at a point on defendant's track distant from one-quarter to three-quarters of a mile from Powderly. The train was about 10 minutes late, and was running at a rate of speed estimated by plaintiff's witnesses at from 25 to 45 miles an hour, and by defendant's witnesses at from 55 to 60 miles an hour. The witnesses disagreed in their statements as to where the engine was when the alarm signals were first sounded, but they were sounded continuously from the time they began until Wicks was struck. The injury occurred on a bright day, about noon, and the track was up grade from Powderly to the scene of the accident. The evidence of two of plaintiff's witnesses was to the effect that the train was blowing a succession of short blasts from Powderly to the place of the accident, a distance of about a quarter of a mile; that it did not stop or slacken its speed until after Wicks was hit but ran past where he was before stopping,--one witness saying that it ran 150 yards before it stopped, after striking Wicks. One of said witnesses (Mims) testified that he was in Powderly when the train passed, and from his position there he saw Wicks on the track, or by the side of the track; that he was either lying down, or was propped up "mighty near down," on the engineer's side of the track; that a person sitting on the engine could have seen Wicks from where witness was in Powderly. One Ross, a witness for plaintiff, testified that he had 10 years' experience as an engineer and fireman, and that a passenger train such as caused the injury complained of, running at a rate of speed of 25 to 40 miles an hour on a steep up grade could be stopped in 125 yards, and, if running on a level could be stopped in 150 or 200 yards. The railroad track was laid on an embankment from Powderly to where the injury occurred. Another witness for plaintiff testified that he went to the spot where Wicks was killed, and saw blood on the track there; that he saw Wicks after he was killed; and that he was struck on the right side of his head. The engineer of the train, testifying for the defendant, stated that when he first saw Wicks he was about 75 or 100 yards from the engine that he was sitting on the end of a cross-tie, or between the ties, in a stooping-over position, like he was nodding, and witness could see his head move backwards and forwards; that as soon as he saw Wicks he put on the brakes in emergency, and blew the alarm whistle, reversed the engine, and put on sand; that the effect on the train was to stop it in 150 or 200 yards after striking Wicks, and this was an unusually good stop; that he was...