Bessierre v. Alabama City, G. & A. Ry. Co.

• Decision Date: 21 November 1912
• Citation: 60 So. 82,179 Ala. 317
• Court: Alabama Supreme Court
• Parties: BESSIERRE v. ALABAMA CITY, G. & A. RY. CO.

60 So. 82

179 Ala. 317

BESSIERRE v. ALABAMA CITY, G. & A. RY. CO.

Supreme Court of Alabama

Nov 21, 1912

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Leonie Bessierre, as administratrix, etc., against the Alabama City, Gadsden & Attalla Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Count 1 is as follows: "Plaintiff claims of defendant the sum of $25,000 as damages for that, heretofore, to wit, the defendant was engaged in operating an electric street railway in the city of Gadsden, Ala., and the plaintiff avers that on said date, at or near a place commonly known as Brown's crossing or Brown's station, in said city of Gadsden, the defendant so negligently managed or operated one of its electric cars on said railway that the said car ran against plaintiff's intestate and killed him. Counts 2 and 3 are in wanton negligence. Count 4 alleges the place to have been a public crossing, and that Duncan, a motorman in the employment of the defendant, and acting as such at said time and place negligently, carelessly or recklessly ran said car against plaintiff's intestate and killed him." Count 5: Same as 1, with the addition of the allegation that the place was a public crossing, and that the defendant at said time and place negligently, carelessly, or recklessly operated one of its cars over and across said public street at said station or crossing without having said car equipped with a sufficient headlight, and thereby ran said car against plaintiff's intestate and killed him. Count 7: Same as 5 except that it is alleged that the defendant negligently carelessly, or recklessly permitted one of its cars to approach said crossing at a high rate of speed in the nighttime without having said car in proper control, and while plaintiff's intestate was in the act of crossing said car struck him and killed him. Count 9 alleges the facts practically as formerly alleged with the further allegation that the place was a station where passengers were regularly taken aboard and discharged from plaintiff's cars, and after the hour of 7 o'clock in the evening, when it was dark, plaintiff's intestate was waiting to take passage on one of defendant's cars that one Duncan, who was in the service of the defendant as motorman of the car, totally disregarded his duty to keep a lookout for those who might be waiting to take passage on said car at said crossing or said station, and totally disregarded his duty to stop said car at said crossing, in order that plaintiff's intestate might take passage thereon willfully, wantonly, or intentionally ran said car across and by said crossing, and against plaintiff's intestate, and killed him. Count 10: Same as 4. Counts 14, 15, 16, and 17 were added by way of amendment. Count 14, after stating the facts as stated in count 4 and count 9, alleges that while plaintiff's intestate was in the act of taking passage on said car the defendant so negligently managed or operated one of its said cars on said railway that said car ran against said plaintiff's intestate and killed him, and said plaintiff averred that her damages were negligently caused as the proximate result of defendant's negligence. Count 15: Same as 14, except that it alleges the negligent want of a proper and sufficient headlight. Count 16: Same as 14, with the allegation that the motorman failed to keep a proper lookout, and that the damages were proximately caused by this negligence. Count 17 Same as 1, with the additional allegation that Brown's crossing or station was a place where cars regularly stop to take on and discharge passengers. The pleas which were filed to the counts charging simple negligence all alleged in varying phraseology that the decedent was on the track or carelessly walking along the track or crossing the track without having stopped, looked, or listened for an approaching car.

McCord Roper, Inzer & Stephens, of Gadsden, for appellant.

O. R. Hood, of Gadsden, for appellee.

MAYFIELD J.

This action is brought under the homicide statute to recover damages for the wrongful death of plaintiff's intestate. Intestate was dead when first found. So far as the record discloses, no one saw the killing, and none testified as to the agency which killed intestate. His body, when found, was lying about eight feet from the defendant's street car track at a road crossing which made a small fill on the car line. This crossing was used by the defendant as a stopping place for taking on and discharging passengers, when signaled or notified to stop, by passengers or by those desiring to become such. The deceased's body was found about 7:30 o'clock at night by servants or passengers on board one of defendant's cars which was going into the city of Gadsden, and from the steel plant which is near the city in question. The body was lying on this little fill at the crossing, the head in the opposite direction to that from which the car was going, the feet a little nearer the track than the head. The body showed wounds on the left side of the head and face. The left side of the body was on the ground; the face being towards the track. The car had passed the spot before the body (or the deceased) was discovered, so far as the record discloses. The distance which the car traveled past the crossing in question before it was stopped was variously estimated to be from 60 feet to 150 feet. So far as the record discloses, there was no effort or intention to stop the car at the station until the deceased or his body was discovered by the motorman or the passengers; and the evidence is in a state of uncertainty as to this.

The plaintiff offered to prove by some of the passengers that as soon as the car had passed this crossing, or had gone a few feet, nine or ten feet beyond, the motorman shut off the power, threw on the brakes, and, opening the door, threw up his hands and exclaimed, "My God! I have killed a man." The court declined to allow this proof; and this is one of the many assignments of error insisted upon for a reversal. The body was lifeless when found, but was warm and bleeding.

At the conclusion of the trial the court, on motion of defendant's counsel, excluded all the evidence; and then, at his request in writing, instructed the jury that, if they believed the evidence (there being none, because it had been excluded), they would find for the defendant, which the jury accordingly did. From the judgment entered on the verdict this appeal is prosecuted by the plaintiff.

The assignments of error are well grouped by counsel, in argument, into three classes: First, those relating to rulings on demurrer to counts of the complaint, and to the special pleas of contributory negligence; second, those relating to the exclusion of evidence offered by plaintiff, and to the admission of that offered by defendant; and, third, those relating to the action of the court in excluding all the evidence and directing a verdict for the defendant.

We find no reversible error in the sustaining of the defendant's demurrer to any count of the complaint. The complaint as last amended consisted of 17 counts. Demurrers were sustained to counts 1, 5, 9, 10, 14, 15, 16, and 17, and were overruled as to all others. Each of these counts was subject to one or more of the special grounds of demurrer interposed thereto. Without attempting to point out each ground to every count it is sufficient to treat them generally, as is done in briefs of counsel. Most of these counts, declaring on simple negligence in being stricken by a moving car, failed to sufficiently show any right of intestate to be on the track or near enough thereto to be struck by the car; and, construing the counts against the pleader, showed that he was a trespasser, and did not show or attempt to show injury on account of wantonness, willfulness, or subsequent negligence, and they were therefore subject to the demurrers taking this point or raising this question of law.

The true rule as to the sufficiency of counts in such cases was first and well stated in Chewning's Case, 93 Ala. 27, 9 So. 458. The only change (if change it could be called) which has been since made in the statement of the rule is in adding subsequent negligence to wantonness and willfulness as exceptions to the rule. The rule is thus stated in Chewning's Case: "Under our decisions a trespasser cannot maintain an action against a railroad company for injuries sustained while trespassing on its roadbed, unless such injuries were caused by reckless, wanton, or intentional negligence. If a complaint affirmatively shows that the plaintiff is a trespasser, an actionable injury is not shown unless alleged to have been caused recklessly, wantonly, or intentionally. The presumption of negligence of such character and degree does not arise from the mere fact of injury to a trespasser. The count, failing to aver any relation or connection between plaintiff and defendant which creates the duty to use the highest degree of care, should therefore be construed as if he were an intruder. It may be that, had the count averred the engine and train were run against plaintiff by reckless, wanton, or intentional negligence, it would have been held sufficiently certain--comporting with our system of pleading--though no special acts or omissions constituting the negligence were averred. But when, in such case, the complaint avers simple negligence, it is insufficient, the same as if it had affirmatively shown that plaintiff was a trespasser." This case has been frequently followed. Georgia Pac. R Co. v. Ross, 100 Ala. 490, 14 So. 282; Haley, Adm'r, v. Kansas City, M. & B. Ry. Co., 113 Ala. 640, 21 So. 357; Lacey-Buck Iron Co. v. Holmes, 164 Ala. 102, 51 So. 236. It is further said in ...