Burson v. Louisville & N.R. Co.

• Decision Date: 09 June 1897
• Citation: 22 So. 457,116 Ala. 198
• Parties: BURSON v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

22 So. 457

116 Ala. 198

BURSON v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

June 9, 1897

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

Action by C. C. Burson against the Louisville & Nashville Railroad Company. From a judgment on verdict for defendant, plaintiff appeals. Affirmed.

This action was brought by the appellant, C. C. Burson, against the appellee, the Louisville & Nashville Railroad Company, to recover damages for personal injuries alleged to have been inflicted by reason of the negligence of the defendant or its employés. To the first eight counts of the complaint, which counted upon the negligence of the defendant, the defendant pleaded contributory negligence. To the ninth and tenth counts of the complaint, which averred the wanton or willful misconduct of the defendant's engineer and flagman respectively, the defendant pleaded the general issue. Plaintiff introduced evidence tending to show that on the 15th day of January, 1895, plaintiff was passing over and along Twenty-Fourth street, within the corporate limits of the city of Birmingham, Ala., at a point on said street between First avenue and Avenue A, where certain railroad tracks used by defendant crossed said street on grade; that said street at said point was a much-frequented thoroughfare that at said point it was much used at all hours of the day by both vehicles and pedestrians, and was one of the most public crossings for passengers of said city; that said street was 80 feet wide, inclusive of the sidewalks, which were 12 feet each; that at said time defendant ran and operated a train, composed of a steam locomotive and cars over and along said tracks, across said street; that plaintiff was struck by said engine on said crossing in the line of the sidewalk of the said street, and, as a proximate consequence of being so struck, plaintiff suffered the injuries and damage set out in the complaint in the said cause; that said train was not brought to a stop before crossing said Twenty-Fourth street. Some testimony introduced by plaintiff tended to show that defendant ran said train over said crossing at a rate of speed of about 20 miles per hour, and some of plaintiff's testimony tended to show such speed was about 8 miles an hour. Plaintiffs also introduced witnesses who testified that they were near said train as it approached said crossing and ran over same, and that they did not hear any blowing of the whistle or ringing the bell, except that it blew two quick blasts of the whistle when the...