Atlantic Coast Line R. Co. v. French

• Citation: 261 Ala. 306,74 So.2d 266
• Decision Date: 04 March 1954
• Docket Number: 6 Div. 540
• Parties: ATLANTIC COAST LINE R. CO. v. FRENCH.
• Court: Supreme Court of Alabama

Page 266

74 So.2d 266

261 Ala. 306

ATLANTIC COAST LINE R. CO. v. FRENCH.

6 Div. 540.

Supreme Court of Alabama.

March 4, 1954.

Rehearing Denied Aug. 30, 1954.

Huey, Welch & Stone, Bessemer, for appellant.

Edw. L. Ball, Norman K. Brown, Bessemer, for appellee.

Count A of the complaint avers that on April 19, 1951, defendant was engaged in the operation of a locomotive with a train of cars attached in the City of Bessemer, a thickly populated municipality, at or near the intersection of Carolina Avenue and Fourteenth Street in said city. It further avers that on said date plaintiff's 'said minor child became in a position of peril upon or in dangerous proximity to the track of said locomotive and train of cars attached, and that the defendant's engineer or other employee in charge of the operation of said locomotive and train of cars attached, while acting within the line and scope of his said employment, discovered the said peril of the plaintiff's said minor child and after said discovery of peril said engineer or employee while acting within the line and scope of his employment as such engineer or employee, negligently failed to use all the means within his power, known to skillful engineers, to prevent a collision between said locomotive and train of cars attached and the plaintiff's said minor child, when by the use of said means said collision could have been prevented, and as the proximate consequence of said negligence the defendant's said locomotive and train of cars attached did run over, upon or against the plaintiff's said minor child and as a proximate consequence thereof the plaintiff's said minor child was killed.'

The demurrer contained these grounds, inter alia:

4. For that it affirmatively appears that the death of plaintiff's minor child was not the proximate result of the alleged negligence of defendant's said engineer or employee.

5. For that it affirmatively appears that the death of plaintiff's minor child was a remote and not proximate consequence of the alleged negligence of defendant's engineer or employee.

LAWSON, Justice.

This is a suit by a mother brought under the so-called homicide act, § 119, Title 7, Code 1940, to recover damages for the death of her eleven-year-old son.

The case was submitted to the jury on behalf of the plaintiff on Count A of the complaint, which count charged subsequent negligence, and on the defendant's plea of the general issue in short by consent.

There was jury verdict in favor of plaintiff in the amount of $6,000. Judgment followed the verdict. The defendant's motion for new trial having been overruled, it has appealed to this court.

The language of the complaint sufficiently shows the causal connection between the negligence of the defendant and the death of plaintiff's minor son. Carter v. Shugarman, 197 Ala. 577, 73 So. 119; Jack Cole, Inc., v. Walker, 240 Ala. 683, 200 So. 768. See Southern Ry. Co. v. Wright, 207 Ala. 411, 92 So. 654.

The rule in respect to a motion by a defendant to exclude all the plaintiff's evidence is that the trial court will not be put in error for refusing the motion nor will it be put in error for granting it if the evidence does not make out a prima facie case. Riley v. Riley, 257 Ala. 636, 60 So.2d 432, and cases cited.

It is insisted that the general affirmative charge with hypothesis, requested by the defendant in writing, should have been given.

It is well established that a child may become a trespasser upon the same facts that would fix that status upon a person of legal discretion and this is true although the child be incapable of contributory negligence. Alabama Great Southern R. Co. v. Moorer, 116 Ala. 642, 22 So. 900; Nashville, C. & St. L. Ry. Co. v. Harris, 142 Ala. 249, 37 So. 794; Cardwell v. Louisville & N. R. Co., 185 Ala. 628, 64 So. 564.

It is conceded that plaintiff's minor son was a trespasser on a trestle of the defendant at the time he received his fatal injury.

There was nothing to warn the engineer that a person might be on the trestle, hence the defendant owned no duty until the actual discovery of the dangerous situation of the deceased. Birmingham Southern R. Co. v. Kendrick, 247 Ala. 573, 25 So.2d 419.

It is without dispute that the engineer did discover the presence of the deceased on the trestle, as a human being, and at the time of the discovery became aware of the deceased's perilous situation.

Immediately upon discovery of the deceased's peril the defendant owed him the duty to exercise reasonable care to avoid injuring him. Callaway v. Griffin, 245 Ala. 598, 18 So.2d 547.

The rule as to duty and diligence after discovery of peril in a case of this kind is that the agent or servant in control of the engine must promptly resort to all preventive means at hand known to skilled persons likewise employed to avert injury. Kendrick v. Birmingham Southern R. Co., 254 Ala. 313, 48 So.2d 320, and cases cited. In Louisville & N. R. Co. v. Griffin, 240 Ala. 213, 216, 198 So. 345, 347, the rule is stated in the following language:

'It is well established in this jurisdiction that in order to predicate liability for subsequent negligence, the defendant must be shown to have had actual knowledge of the plaintiff in a perilous position, and thereafter negligently fail to use all the means at his command and known to skillful engineers, so circumstanced, to avert damage to the plaintiff, when to have promptly and duly used such means could have averted the accident. * * *'

As regards the failure of the engineer to sufficiently retard the movement of the train, the negligence to liability consists in a failure to perform the duty declared, and not in the ultimate effect produced on the movement of the train. Louisville & N. R. Co. v. Young, 153 Ala. 232, 45 So. 238, 16 L.R.A., N.S., 301.

In a case of this kind the provisions of § 173, Title 48, Code 1940, do not operate to place the burden on the defendant to prove want of negligence after discovery of peril. Watts v. Atlantic Coast Line R. Co., 256 Ala. 352, 54 So.2d 601; Atlantic Coast Line R. Co. v. Flowers, 241 Ala. 446, 3 So.2d 21. See Louisville & N. R. Co. v. Johns, 258 Ala. 440, 63 So.2d 574.

The plaintiff, having based her right to recover on allegations charging subsequent negligence, had the burden of proving those allegations. Louisville & N. R. Co. v. Griffin, 240 Ala. 213, 198 So. 345; Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223; Jolley v. Southern Ry. Co., 197 Ala. 60, 72 So. 382; Louisville & N. R. Co. v. Rayburn, 192 Ala. 494, 68 So. 356; Louisville & N. R. Co. v. Jones, 191 Ala. 484, 67 So. 691; Louisville & N. R. Co. v. Moran, 190 Ala. 108, 66 So. 799.

We come now to consider the evidence. The defendant offered no testimony. The plaintiff's testimony consisted of the answers of the defendant to interrogatories propounded by the plaintiff and the testimony of two witnesses, one of whom was an eye-witness to the tragedy. The other observed the movements of the train but did not see the train hit the deceased.

We will first summarize the pertinent parts of the defendant's answers to the interrogatories.

The trestle on which deceased was killed is approximately 376 feet long and the distance from the ground to the top of the crossties on the trestle is approximately 32 feet. The trestle is almost in the center of a six-degree curve to the right looking north. The total length of the curve is about 720 feet.

The accident occurred on the morning of April 19, 1951. Defendant's train was moving in a northerly direction downgrade. The freight train consisted of four Diesel locomotive units and seventy-four cars. The train had been moving at a speed of approximately thirty miles an hour, but before reaching the trestle the engineer had made a service application of the brakes so as to stop the train at a point some distance beyond the northern end of the trestle.

The front part of the train was on the trestle when the engineer first became aware of the presence of the deceased. The deceased was approximately 136 feet in front of the train when the engineer first saw him. He was running in a northerly direction away from the approaching train. Deceased was approximately four feet from safety, the northern end of the trestle, when he was hit by the train. He had run a distance of approximately 156 feet from the time the engineer saw him until he was hit. The train in the meantime had moved a distance of approximately 292 feet.

The train was moving at a speed of approximately twenty miles an hour when the engineer discovered the deceased on the trestle. The bell was ringing at the time of discovery. The engineer immediately did everything at his command known to skillful engineers to avoid injury to the deceased, including the immediate application of the brakes in emergency, the sanding of the tracks, and the blowing of the whistle several times. 'It was impossible for the engineer after the discovery of the deceased on the trestle to prevent the train from striking the deceased by the exercise of all means at his command known to skillful engineers, although he did exercise all such means immediately upon discovery of the deceased upon the trestle.'

When the brakes were applied in emergency the speed of the train was gradually reduced so that at the time of impact the speed was from twelve to fifteen miles an hour.

After the deceased was hit by the train, he was...