Alabama, T. & N.R. Co. v. Huggins

• Decision Date: 02 December 1920
• Docket Number: 2 Div. 725
• Citation: 205 Ala. 80,87 So. 546
• Court: Alabama Supreme Court
• Parties: ALABAMA, T. & N.R. CO. v. HUGGINS.

87 So. 546

205 Ala. 80

ALABAMA, T. & N.R. CO. v. HUGGINS.

2 Div. 725

Supreme Court of Alabama

December 2, 1920

Appeal from Circuit Court, Sumter County; R.I. Jones, Judge.

Action by Bob Huggins against the Alabama, Tennessee & Northern Railroad Company for damages for personal injury. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Sayre Somerville, and Gardner, JJ., dissenting.

It is the duty of those in charge of a train backing on an interchange track in railroad yards to keep a lookout for laborers required to be on the track.

The complaint on which the case was tried sufficiently appears from the opinion.

Plea 3 is as follows:

Plaintiff himself was guilty of negligence which proximately contributed to his injury, in this, that the plaintiff negligently suffered or permitted himself to be and remain in front of the approaching train.

Original plea 2 is as follows:

Contributory negligence, in that the said plaintiff went upon the track in front of the said train which injured him without stopping, looking, and listening.

Amended plea 2 is that plaintiff went upon the track in front of the said train which injured him without stopping, looking, and listening for an approaching train.

Original plea 4 is contributory negligence, in that plaintiff, without stopping, looking, and listening, went into such close proximity to the track upon which defendant's train was as to be struck by a moving train.

Amended plea 4 is that, without stopping, looking, and listening for an approaching train, plaintiff went into such close proximity to the track upon which the defendant's train was approaching as to be struck by said moving train, and as a proximate result thereof was struck by said moving train.

Original plea 5 is that plaintiff suffered or permitted himself to be and remain in such close proximity to the track upon which defendant's train was approaching as to be struck by such moving train, without looking and listening for the approach of the train.

Amended plea 5 is the same as original plea 5, except the last line which is: "By said moving train, without looking and listening for an approaching train."

Original plea 6 is that plaintiff, without stopping, looking, and listening for an approaching train, backed into the moving train of the defendant which injured him.

Amended plea 6 is the same as original plea 6 except that the word "negligently" is interlined between the word "train" and the word "backed."

The following are the lettered pleas:

A. And for further plea in its behalf to the first count of the complaint, defendant says that the plaintiff himself was guilty of negligence which proximately contributed to his injury, in that said plaintiff went upon the track immediately in front of the train of the defendant which injured him, without stopping, looking, and listening for an approaching train.

B. And for further plea in its behalf to the first count of the complaint, defendant says that plaintiff himself was guilty of negligence which proximately contributed to his injury, in that plaintiff, without stopping, looking and listening for an approaching train, went into such close proximity to the track upon which defendant's train was then and there immediately approaching as to be struck by said moving train, and as a proximate result thereof plaintiff was injured by said moving train of defendant.

C. And for further plea in its behalf to the first count of the complaint, defendant says that plaintiff himself was guilty of negligence which proximately contributed to his injury, in that plaintiff suffered or permitted himself to be and remain in such close proximity to the track upon which defendant's train was then and there immediately approaching as to be struck by said approaching train without looking and listening for an approaching train.

D. And for further plea in its behalf to the first count of the complaint, defendant says that plaintiff himself was guilty of negligence which proximately contributed to his injury, in this, that plaintiff, without stopping, looking, and listening for an approaching train, backed into or in front of a train of the defendant which was then and there immediately approaching, and as a proximate result thereof was injured by said moving train.

Armbrecht, Johnston & Mitchell, of Mobile, for appellant.

Frank S. White & Sons, of Birmingham, Thomas F. Seale, of Livingston, and Ben F. Elmore, of Demopolis, for appellee.

THOMAS J.

The suit for personal injury was tried on a count of simple negligence. Defendant's pleas, generally stated, were: (1) The general issue; (2) contributory negligence in going upon the track in front of the approaching train and in close proximity thereto, without stopping, looking, and listening; and (3) in remaining thereon in front of the approaching train.

Omitting formal allegations, the count was, in part, that--

"While the plaintiff was engaged in the discharge of his duties as a section hand of the Alabama Great Southern Railroad Company, cleaning up the track in the railroad yards near the depot at York, Sumter county, and while on the track of the last-named company, he was struck by a car, or the contents of a car, being operated by the defendant, with great force and violence, knocking him down" and causing the injuries catalogued; and plaintiff "avers that his said injuries were proximately caused by the negligence of defendant's servant or agent operating the train or locomotive engine to which said car was attached, and that said servant or agent of defendant was acting within the line and scope of his authority by the defendant."

The alleged conduct of plaintiff is assumed, as a matter of law,...