Alabama Great Southern R. Co. v. Guest

• Decision Date: 07 April 1903
• Citation: 136 Ala. 348,34 So. 968
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. GUEST. [a1]
• Court: Alabama Supreme Court

34 So. 968

136 Ala. 348

ALABAMA GREAT SOUTHERN R. CO. v. GUEST. ^[a1]

Supreme Court of Alabama

April 7, 1903

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

Action by J. H. E. Guest, as administrator of the estate of William Dean, deceased, against the Alabama Great Southern Railroad Company, to recover for the alleged willful killing of plaintiff's decedent. From a judgment granting plaintiff's motion for a new trial, defendant appeals. Affirmed.

Amos E Goodhue, for appellant.

Howard & Isbell, for appellee.

HARALSON J.

Issue was joined and the case was tried upon counts 2, 3, 6 and 7 each of which sets up that the injury of plaintiff's intestate was caused by the willfulness, wantonness or intentional act of defendant's agents and servants. It is unnecessary to notice the second count, as no question arises on it.

The third count proceeds on the allegation that defendant's agents and servants while operating a freight train in De Kalb county, uncoupled it in the town of Ft. Payne, detaching the engine, leaving two cars and a caboose to run down the main line of track without an engine attached to them, and after discovering that plaintiff's intestate was in great peril and danger, willfully, wantonly and intentionally through its agents or servants, ran said cars upon and against intestate and killed him.

The sixth, like the third, bases the alleged willfulness and wantonness on the allegation, that after discovering intestate's peril and danger, the servants or agents of defendant ran said cars against and over intestate; and the seventh, on the averment, that after the discovery of the intestate's peril and danger by defendant's agents and servants, they could have avoided and prevented said injury but for the willful, wanton and intentional acts of defendant's [servants and agents] in running said cars and caboose upon and over plaintiff's intestate.

The sixth count contained the allegation: "And at said hour [about noon] a great many people passed on foot [along said track], as was well known to defendant's agents and servants." This averment was, on motion of defendant stricken from this count.

The plaintiff during the trial offered evidence to show that at the point of the killing, from 30 to 50 people walked along said track from 11 a. m. to noon of each day for six months prior to the killing, which evidence, the court, on the objection of the defendant, would not allow.

The trial resulted in a verdict and judgment for the defendant. The plaintiff moved for a new trial on grounds among others, that the court erred in striking the averment above quoted from the sixth count of the complaint, and in not allowing the plaintiff to introduce the evidence above stated, as to the number of people who passed daily along the track at the point of the killing.

The court granted the motion for a new trial, stating in the judgment entry, that the court was of the opinion and found, that the verdict of the jury was not contrary to the evidence and was not contrary to the charge of the court, but that the court was of the opinion that it erred in excluding said proposed evidence from the jury, and in striking from the complaint the averment as above set out.

The evidence showed without conflict, that the killing of plaintiff's intestate occurred within the limits of the incorporated town of Ft. Payne, near the freight depot of the railroad; that there were three tracks at this point, the main line being in the center of the other two, and about eight feet from each; that Main street in said town crosses the railroad tracks just north of the depot building, which is on the south of the street; that intestate had walked south, down the main line, having gotten thereon 35 or 40 yards north of the north side of the street where it crosses the railroad, and had walked on the line clear across the street with his back to the cars, and had proceeded to a point south of the crossing, when he was overtaken and struck by the cars; that the house where he lived, was on the east side of the track and south of the crossing, about 100 yards, and deceased had proceeded down to a point nearly opposite his house, as he had frequently done. It was further shown, that defendant's train was uncoupled, about 200 yards north of Main street, and two of the cars and a caboose, which overtook intestate, were let down the main track, and the engine and other cars went down on the west side track.

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