Alabama Great Southern R. Co. v. Guest

• Decision Date: 21 December 1905
• Citation: 144 Ala. 373,39 So. 654
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. GUEST.
• Court: Alabama Supreme Court

39 So. 654

144 Ala. 373

ALABAMA GREAT SOUTHERN R. CO. v. GUEST.

Supreme Court of Alabama

December 21, 1905

Appeal from Circuit Court, De Kalb County; J. A. Bilbro, Judge.

"To be officially reported."

Action by J. H. E. Guest, as administrator of the estate of J. M Dean, deceased, against the Alabama Great Southern Railroad Company.From a judgment in favor of plaintiff, defendant appeals.Reversed.

This action was brought by appellee, J. H. E. Guest, as the administrator of the estate of J. M. Dean.

The following charges were given at the request of plaintiff:

"(41) To run a train at a high rate of speed and without signals of approach, without warning, at a place in a populous district of an incorporated town where those in charge of the train know the public are wont to pass with such frequency and in such numbers as that they may know there is a likelihood that there are persons on the track at such place, and that such persons may probably be injured by such trains, is such reckless indifference to the safety of such persons as would render the employer liable for injury resulting therefrom, notwithstanding there was negligence on the part of the person injured and no fault on the part of the servants after seeing the danger.

"(42) If the jury believe, from the evidence in this case, that the defendant's agent or servant in charge of the two cars and the caboose ran them at a high rate of speed without signals of approach, without warning, at the place where the decedent, William Dean, was killed, and if said place of killing was in an incorporated town, where those in charge of said cars and caboose knew the public at said time were wont to pass and did pass with such frequency and in such numbers as that those in charge of said cars and caboose knew that there was a likelihood that there were persons on the track at the time and place when and where deceased, William Dean, was killed, and that such persons might be injured by such cars and caboose at that time and place, then that is such reckless indifference to the safety of such persons as would render the defendant liable for the injuries received; and in such event, plaintiff is entitled to a verdict, if Dean was thus killed, notwithstanding there was no fault on the part of servants of defendant, and notwithstanding the deceased, William Dean, was negligent."

Charges were requested by and refused to defendant as follows:

"(18)The court charges the jury that the mere intentional omission to perform a duty, or the intentional doing of an act contrary to duty, although such conduct be culpable and result in injury, without more, falls very far short of showing that the injury was wantonly or intentionally inflicted.Unless there was a purpose to inflict the injury, it cannot be said to be intentionally done; and unless an act is done or omitted to be done under circumstances and conditions known to the person that his conduct is likely to or probably will result in injury, and through reckless indifference to consequences he consciously or intentionally does a wrongful act or omits an act, the injury cannot be said to be wantonly inflicted.

"(19)The court charges the jury that one who is injured in consequence of being negligently on a railroad track cannot recover, unless the railroad employés are guilty of such gross negligence or recklessness as amounts to wantonness or intention to inflict the injury; and that this wantonness and intention to do wrong can never be imputed to them, unless they actually know, not merely ought to know, the perilous position of the person on the track, and with such knowledge failed to resort to every reasonable effort to avert disastrous consequence.And this rule applies as well to densely populated neighborhoods in the country as to the streets of a town and city."

"(23)The court charges the jury that if the place at which the killing occurred was not in a populous district of an incorporated town, and was not a place where those in charge of the train knew the public were accustomed to pass with such frequency and in such number as that they may know there is a likelihood that there are persons on the track at such time and place, then the jury cannot find a verdict for the plaintiff, unless they find that after discovery of peril some agent or servant of defendant consciously failed to do something which he knew it was his duty to do to prevent the happening of the injury."

"(31)The court charges the jury that the plaintiff cannot recover in this case unless you are reasonably satisfied from the evidence that defendant's agent or servant in charge of the cars discovered deceased on the track, and knew from the surrounding circumstances that he would not or could not leave the track in time to prevent injuring him, and that with this knowledge, and having in mind what to do to prevent injuring him, he failed to use such means at command to avoid the accident.

"(32)The court charges the jury that, unless they are reasonably satisfied from the evidence that defendant's agent or servant in charge of the car could by the use of reasonable diligence have averted the injury to deceased after he was discovered on the track and after his perilous position and danger was known to them, they should find for the defendant.

"(33)The court charges the jury that, if they believe from the evidence that no skill and diligence and preventive efforts which the agent or servants could have put forth or used after they discovered Mr. William Dean on the track and his dangerous position could have averted the injury, then they must find for the defendant.

"(34)The court charges the jury that it is only when the employés of the company operating the car fail to exercise reasonable care to avoid injuring him after the party on the track had been discovered and peril of the injury had become apparent that they are held to be guilty of wanton negligence.

"(35)The court charges the jury that they cannot find for the plaintiff on the eighth count of the complaint unless they are reasonably satisfied from the evidence that the cars were being run at a high and dangerous rate of speed at the time William Dean was struck."

"(37)The court charges the jury that if the place at which Mr. Dean was killed was not in a populous district of an incorporated town, and was not a place where those in charge of the train knew the public were accustomed to pass with such frequency and in such numbers as that they might know or have reason to believe there is a likelihood that there are persons on the track at such time and place, then the jury cannot find for the defendant, unless they find that after discovery of the peril of Mr. Dean defendant's agent or servant in charge of the cars failed to do something which he knew it was his duty to do to prevent injury.

"(38) To constitute wanton negligence, the act done or omitted must have been done or omitted with a present knowledge that injury would probably result.

"(39) If the jury believe from the evidence in this case, they must find for the defendant on the second count in the complaint."

Goodhue & Blackwood, for appellant.

Howard & Isbell and Davis & Haralson, for appellee.

DOWDELL J.

On the former...