Brown v. St. Louis & S.F.R. Co.

• Decision Date: 13 April 1911
• Citation: 55 So. 107,171 Ala. 310
• Parties: BROWN v. ST. LOUIS & S. F. R. CO.
• Court: Alabama Supreme Court

55 So. 107

171 Ala. 310

BROWN v. ST. LOUIS & S. F. R. CO.

Supreme Court of Alabama

April 13, 1911

Rehearing Denied May 12, 1911.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Samuel Brown, as administrator of Houston Oury, against the St. Louis & San Francisco Railroad Company, for the death of his intestate. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The allegations of the complaint sufficiently appear from the opinion. The third plea is as follows: "Separately and severally to each count defendant says that plaintiff's said intestate was himself guilty of negligence, which proximately contributed to his said injuries, in this: That after finding himself in a place of danger upon said trestle and in danger of being run over by said approaching train, he nevertheless negligently ran along said trestle and on said track in the direction of said approaching engine, and negligently continued such course until it became too late for defendant's agents in charge of said engine to avoid the injury." The first replication is as follows "That the plaintiff's intestate was an infant of immature years, and was under the age of 14 years, and was incapable by reason of immature judgment of being guilty of contributory negligence."

The following is a charge refused to plaintiff: (1) "I charge you that a judgment in this suit will be a bar to any other suit in favor of the father or mother for damages compensatory or otherwise, for the alleged wrongful death of the deceased minor, Houston Oury, against this defendant." The following charges were given to the defendant: (1) "I charge you, gentlemen of the jury that evidence as to the distance in which a train may be stopped under perfect or ideal conditions is not conclusive in this case. The question here is whether or not defendant's engineer, after his mind had become conscious of and he realized and understood Houston Oury's danger, negligently or intentionally failed to use the means at his command to avoid the injury. Unless the engineer was guilty of such dereliction in his duty after becoming conscious of Houston Oury's peril, your verdict must be for the defendant." (10) "The question for your consideration is, not whether the engineer might have observed the plaintiff's intestate sooner (for I charge you that he was under no duty to look out for him), but whether, after catching sight of him and becoming conscious of his position of peril, he negligently failed to use some means to avoid the injuries which would have suggested themselves to the mind of an ordinarily prudent man under the same circumstances." (A) Affirmative charge against the recovery for willful, wanton, or intentional negligence. (B) Affirmative charge as to count 3.

Gaston & Pettus, for appellant.

Campbell & Johnston, for appellee.

SIMPSON J.

This action is by the appellant, as administrator of Houston Oury, deceased, for damages for the death of said decedent, under the homicide act. The said intestate was a boy between 13 and 14 years of age, and was killed by being struck by an engine drawing a train of cars, on a trestle of defendant's.

The first count, as amended, charges that said intestate was on said trestle, "in a place of danger on said track, and said intestate's danger was seen by defendant's servant or agent in charge or control of its engine or train which struck said intestate, as hereinafter set out, in time to have averted said injury, by exercising reasonable ability," and that the death was the proximate consequence of, and caused by "the negligence of, the defendant, its servants or agents, who had charge or control of said locomotive engine, or locomotive engine and car or cars, in the negligent manner in which they ran, operated, or propelled the same." The second count was withdrawn, the fourth count was eliminated by demurrer, and the third count charged willful or wanton conduct.

The first assignment of error insisted on (being the third in number) is the overruling of plaintiff's demurrer to the third special plea, which is a plea of contributory negligence, and the only error suggested is that it does not set out the facts constituting contributory negligence.

While it is true that, under our decisions, such a plea must set out the facts, and not merely the conclusion of the pleader, yet the rule does not require that the plea shall allege all the facts so specifically as to show that there was some other, safer way to avoid the injury. The cases upon this question are generally where the plea merely alleged contributory negligence generally, without stating the facts.

In the case of Osborne v. Ala. S. & W. Co., 135 Ala. 571 572, 573, 575, 33 So. 687, plea 3 was held good, as it alleged that plaintiff knew of the danger, and of the fact that the waterway was not...