Alabama Great Southern R. Co. v. Snodgrass

Citation201 Ala. 653,79 So. 125
Decision Date11 April 1918
Docket Number6 Div. 683
PartiesALABAMA GREAT SOUTHERN R. CO. v. SNODGRASS.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Suit by Jesse Snodgrass, pro ami, against the Alabama Great Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jesse Snodgrass brings this suit by his next friend for recovery of damages alleged to have been sustained by being struck by a car which it is alleged the defendant negligently caused to run against the plaintiff, resulting in his injury.

The cause was tried upon count 1 of the complaint and the general issue. The submission of the cause to the Jury resulted in a verdict for the plaintiff in the sum of $1,800, from which defendant prosecutes this appeal. Count 1 of the complaint reads as follows:

"Plaintiff Jesse Snodgrass, who sues by next friend, Bill Snodgrass claims of defendant $20,000, damages for that heretofore on, to wit, December 22, 1916, the defendant was engaged in a general railroad business and operating railroad trains propelled by steam locomotives on a railroad in the city of Bessemer, a thickly populated municipal corporation in Jefferson county, Ala.
"And the plaintiff says that while he was then and there walking straight across defendant's railroad track without loitering or lingering thereon, at a point where the public, including a large number of people then and there customarily and frequently walked across said track, the defendant's agent or servant, whose name to the plaintiff is unknown, in charge of one of said trains, and while acting within the line and scope of his employment, negligently caused a railroad car then and there to run violently against the plaintiff, and as a proximate result of said negligence the plaintiff received the following personal injuries and damage, to wit: He was cut, mashed, and bruised about the head and side, his arm was crushed and mashed and cut off close up to his body, and he was otherwise more or less bruised and contused about the body and limbs, and has been thereby caused to suffer great physical pain and mental anguish, and was made sick and sore, and has been greatly and permanently disfigured, and has been rendered permanently less able to work and earn money.
"And the plaintiff says that he was then and there, at the time of his said injuries, a minor of young and tender years, to wit, six years of age."

The evidence for the plaintiff tends to show that the defendant company was engaged in switching cars on to what is referred to as track No. 4, between the hours of 1 and 2 o'clock on the afternoon of December 22, 1916, in the switching yards located in the city of Bessemer; that the plaintiff, a child six years of age, was at the time he was struck in the act of crossing said track No. 4 in a path about two feet wide, which extended from the end of Twenty-Fifth street across two other tracks, and across a dirt road, and then across the said track No. 4 in the direction of the furnaces and coke ovens, which are beyond and west of the switching yards; that as the plaintiff was about to cross this track the defendant's engine which was engaged in switching cars at the time "kicked" four or five cars on said track No. 4, with no one on these cars to keep a lookout, and that these cars were "turned loose" by the engine and ran across this path, thereby injuring the plaintiff; said cars then ran into some cars which were standing on the other side of, and north of the path; that the engine was headed south, which was the opposite direction from which the cars were being "kicked"; that the cars were "kicked" some distance, and the plaintiff was hurt or run over on the first track, and on the first rail thereof. Plaintiff offered evidence to show that the path on which he was traveling at the time was one which had been traveled by the public for a number of years, and had been in use by a great many people for as much as ten years. One of the witnesses for the plaintiff testified that, in his judgment, 300 or 400 people crossed the path daily just where the boy was crossing at the time he was struck. The evidence further tended to show that beyond the switching yards, in the direction which plaintiff was traveling, there were furnaces and coke ovens, and also some few houses; that the path was used by a great many people working in those industries, but that a greater part of the travel is in the morning and evening, there not being as much crossing at that place about 2 o'clock in the afternoon as there would be in the morning and evening. The evidence further tends to show that plaintiff's brother was going over to the coke ovens to pick up coke, and that plaintiff was accompanying him, but several feet in the rear.

The evidence for the defendant tends to show that no cars were "kicked" on said track No. 4 on the afternoon of December 22, 1916, but that two cars were shoved or pushed on said track by the engine which was headed north, and not south; that there were already a number of cars on the track when these two cars were pushed on said track No. 4, which by the impact said cars moved only a short distance, and that there were already cars on the said track No. 4 south of the place where the plaintiff was struck; that these cars were pushed on said track about 2 o'clock in the afternoon. One witness for the defendant indicated it was between 1 and 2 o'clock, and none of the crew knew of the accident until something like an hour or two afterwards when they heard of the same. The evidence for the defendant further tended to show that at the time the two cars were pushed on track No. 4 a proper lookout was being kept. The evidence for the defendant also tends to show that they knew nothing about any path being frequently traveled at this point, and further that there was no such frequent use of such path. However, witness Brown for defendant on cross-examination indicated there was such use made of the yards by the public, and said, "People cross there at all times; it is a very common thing." The witness further indicated that "all up and down the yards" was used by people as a "very common thing" and "all the time." Witness Bryan for defendant also testified that he sees a "good many people walking around in the yard going to the furnaces," but has seen no "great amount of people" cross this particular point. Defendant offered evidence to show that the brother of the plaintiff, who was a witness in the cause, had stated, and plaintiff had stated, that plaintiff was in the act of crawling under the car at the time he was injured.

Among other charges given for the defendant were charges D, G, H, and I, which are here set out:

"(D) If you believe from all the evidence in this case that plaintiff was crawling under the car of the defendant at the time he was injured, then you must find a verdict for the defendant."
"(G) The court charges you that, if you are reasonably satisfied from all the evidence in this case that the place where the plaintiff was injured was a railroad yard, and that there was no street or path across the same at the place of the injury, and if you are also reasonably satisfied from the evidence that at and near the place where plaintiff was injured the public were not accustomed to cross said track upon which he was injured in large numbers, such as to put the agents or servants of the defendant upon notice that there was likely to be or probably would be some person crossing said track, then you must find a verdict for the defendant.
"(H) The court charges you, gentlemen of the jury, that a railroad company has a right to kick its cars in its yards and on the tracks which it has a right to use, and unless you are reasonably satisfied from the evidence that cars were kicked without reasonable precautions over the place which the public was accustomed to use frequently, then, if injury occurred, the railroad company would not be responsible for the same.
"(I) If you believe all the evidence in this case, there was no duty on the part of defendant's agents or servants to look under the cars standing on Birmingham Southern track No. 4, before pushing said cars ahead on said track, if you believe from the evidence they pushed said cars ahead."

A.G. & E.D. Smith, of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

GARDNER J.

The evidence for the plaintiff tended to show that he was accompanying his brother to the coke ovens to procure some coke, and was walking in a path which had been in frequent use by the public for a number of years, directly across track No. 4, in the switching yards used by defendant in the city of Bessemer, Ala., when he was struck by a car just as he was on the first rail of track No. 4. The plaintiff thus in the act of crossing the track on such a mission, and under such circumstances was...

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