Birmingham Ry., Light & Power Co. v. Hinton

Decision Date19 November 1908
Citation48 So. 546,158 Ala. 470
PartiesBIRMINGHAM RY., LIGHT & POWER CO. v. HINTON.
CourtAlabama Supreme Court

Rehearing Denied Feb. 5, 1909.

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Francis E. Hinton, administrator, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The action is for damages of the plaintiff's intestate, who was burned, in the destruction of a house by fire, to an extent that it was claimed to have resulted in her death, and that the fire was set out by sparks from the defendant's locomotive engine. The evidence tended to show the burning of the house and that the fire was set out by sparks from defendant's locomotive. It also tended to show that all the persons who occupied the house got out of the house in safety, but that some of them were burned in an endeavor to rescue the furniture, when one of the little children followed their grown-up sister back into the house, when the mother, plaintiff's intestate, returned to the burning room in order to rescue the child that had returned to the burning house, and was burned. Defendant's evidence tended to show that the death resulted from other causes than the burn, and that the causes were not present when the burn was inflicted, as her death happened 13 months after the burn. The pleadings are sufficiently set out in the opinion.

The following charges were refused to the defendant: "(3) If the jury believe from the evidence that the child Clyde was before the intestate was injured, placed in a place of safety from the fire, and afterwards through the negligence of the intestate, Mrs. Hinton, allowed to re-enter the burning house, and if the jury believe from the evidence that the intestate was burned in an attempt to rescue this child after it returned to the burning house, then the jury must find for the defendant." "(8) No presumption of law arises from the recent passing of a train and the discovery of the fire shortly after in a building near the track, that the fire was set out by the train." "(10) If the jury believe from the evidence that the intestate voluntarily returned into the house after she had discovered the child and after she had reached a place of safety from the fire and would not have been burned but for such fact, the jury must find for the defendant. (11) If the jury believe from the evidence that plaintiff's intestate would not have been burned but for the fact that she voluntarily returned to the burning house after having reached a place of safety, they must find for the defendant." "(15) If the jury believe from the evidence that the intestate and the other inmates of the house had ample time and opportunity after their discovery of the child to have escaped from the burning house by the exercise of reasonable diligence, they must find for the defendant."

Tillman, Grubb, Bradley & Morrow, for appellant.

Estes, Jones & Welch, for appellee.

DOWDELL J.

This is an action to recover damages for personal injuries received by plaintiff's intestate through the alleged negligence of the defendant, and which said injuries it is averred resulted in the death of said intestate. In answer to the complaint the defendant pleaded the general issue and four special pleas. By the third special plea the defendant pleaded a release in writing, which said release is set out in hæc verba in the plea. To this plea the plaintiff filed a number of replications, to which demurrers were interposed by the defendant. The demurrers were overruled as to replications 3, 9, and 10, and sustained as to the others. The overruling by the court of the demurrers to replications above numbered is here assigned as error, and insisted on as such. Replication 3 was as follows: "For replication to the third plea, the plaintiff says that if the defendant has a release, as averred in said plea, it was given at a time when plaintiff's intestate was under the influence of drugs and opiates to such a degree that she was mentally incompetent and incapacitated to contract: hence said release is void and furnishes no defense in...

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