Birmingham Ry. & Electric Co. v. Bowers

• Decision Date: 21 May 1896
• Citation: 20 So. 345,110 Ala. 328
• Parties: BIRMINGHAM RAILWAY & ELECTRIC CO. v. BOWERS.
• Court: Alabama Supreme Court

20 So. 345

110 Ala. 328

BIRMINGHAM RAILWAY & ELECTRIC CO. v. BOWERS.

Supreme Court of Alabama

May 21, 1896

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Mary R. Bowers, administratrix, against the Birmingham Railway & Electric Company, for death of her intestate.From a judgment for plaintiff, defendant appeals.Reversed.

Walker Porter & Walker, for appellant.

Kerr &amp Haley, for appellee.

COLEMAN J.

The appellee, as administratrix, sued to recover damages for the killing of Thomas J. Bowers.The complaint charges the defendant with simple negligence, and, in different counts with having wantonly inflicted the injury which caused the death of her intestate.The negligence averred is that the person in charge of an engine, and operating the same upon defendant's road, negligently ran the engine against the deceased while the latter was crossing the road track; and in other counts, that he wantonly ran the engine against the deceased.To state plaintiff's case in the most favorable light that the evidence will admit of, it is as follows: The engineer was running the engine at the rate of 15 to 18 miles per hour, when both he and the fireman saw the deceased about 10 or 12 feet from the track, as if intending to cross over it.That it was about 10 o'clock in the daytime, and there was nothing to obstruct the view between the engine and deceased.That deceased was deaf; and that, if the engineer had immediately used the proper appliances, the engine could have been stopped before reaching the point where deceased would reach the track.That the engineer made no exertion to stop the engine until it was too late.That neither he nor the fireman recognized the deceased at the time.That deceased continued forward without looking, and, as he stepped over the first rail, the engine struck him, and caused his death.That deceased was not walking along a public crossing, but along a path used by the people in the community as a convenience.This statement gives the plaintiff every advantage.The defendant pleaded the general issue and contributory negligence.So far as plaintiff's right to recover depended upon the counts charging simple negligence, conceding that the defendant was guilty of simple negligence, the plea of contributory negligence was fully sustained; and we do not understand from appellee's argument that he insists upon the right to recover upon the counts charging simple negligence.To the counts charging wanton injury, the defendant pleaded the general issue.The material question at this time for consideration is whether the facts authorized the jury to find that the injury was wantonly or willfully inflicted, as charged in the third and fourth counts of the complaint.Mere negligence which gives a cause of action is the doing of...