Carrington v. Louisville & N.R. Co.

• Decision Date: 12 December 1889
• Citation: 6 So. 910,88 Ala. 472
• Court: Alabama Supreme Court
• Parties: CARRINGTON v. LOUISVILLE & N. R. CO.

6 So. 910

88 Ala. 472

CARRINGTON v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

December 12, 1889

Appeal from Birmingham city court; H. H. SHARPE, Judge.

W M. Brooks, J. M. Van Hoose, and David Smith for appellant.

Jones & Falkner and Hewitt, Walker &amp Porter, for appellee.

SOMERVILLE J.

The action is brought for the alleged negligent killing of the plaintiff's intestate by collision with an engine of the defendant railroad company; the injury having occurred while the deceased was walking on the track or right of way of the defendant. The verdict of the jury was in favor of the plaintiff, and his damages were assessed at the sum of $500.

1. It is perfectly apparent, upon the whole record, that this finding of the jury necessarily determined every issue raised in favor of the plaintiff, excepting alone the issues affecting the amount of recovery. They manifestly decided that the defendant was guilty of culpable negligence, for which it was liable in damages to the plaintiff. They decided, likewise, that the deceased was not guilty of contributory negligence in any particular which would bar a recovery by his personal representative. The only matter as to which the plaintiff in the court below, who is the appellant here, can or does complain is, as we have said, the amount of the recovery. He maintains that the jury should have found a verdict for a larger sum than $500. In this aspect of the record, we have a direct authority in the case of Donovan v. Railroad Co., 79 Ala. 429, for the proposition that we will not consider as reversible error any ruling of the primary court bearing merely on the naked question of the defendant's liability, and not affecting the amount of damages recovered, however erroneous it may be in fact, because, if error, such ruling is error without injury to the plaintiff.

2. The accident which is the basis of the present action occurred on February 10, 1887, before the present Code went into operation. As the statute then stood, the duty of an engineer to ring the bell or blow the whistle was expressly required only at the places enumerated in section 1699 of the Code of 1876. This section included regular depots, public road crossings, curves crossed by public roads, where the engineer could not see at least one-fourth of a mile ahead, and incorporated towns or cities. Code 1876, § 1699. The duty had not then been extended to villages, whether incorporated or not, as in section 1144 of the Code of 1886. Conceding that the collection of houses, with their inhabitants, which is shown to be adjacent to the place of the accident, constituted a village, there was no statutory duty imposed on the engineer in charge of defendant's train to ring the bell or blow the whistle at the place where Carrington, the deceased, was killed.

3. The deceased was a trespasser, and had no lawful right to walk on the defendant's right of way. There was therefore no duty devolving on the engineer to anticipate or expect such an unlawful trespass; and hence no duty existed to keep a vigilant lookout for the perpetrator, in the absence of some special fact or reason which called for diligence in this particular. Bentley v. Railway Co., 86 Ala. 484, 6 South. Rep. 37, citing Womack's Case, 84 Ala. 149, 4 South. Rep. 618; Blanton's Case, 84 Ala. 154, 4 South. Rep. 621; Donovan's Case, 84 Ala. 141, 4 South. Rep. 142. As forcibly said by STRONG, J., in Railroad Co. v. Hummell, 44 Pa. St. 375, "there is as perfect a duty to guard against accidental injury to a night intruder into one's bed-chamber as there is to look out for trespassers upon a railroad, where the public has no right to be." The sooner this salutary principle is understood by the public, the greater will be the security of human life, and the fewer will be the number of deaths from reckless exposures of person to the perilous danger of walking on railroad tracks, in the presence of moving engines, of which one now reads every day in the public press.

4. The third charge requested by the plaintiff, in effect, assumes that, "if many people lived in the immediate vicinity where Carrington was killed," this would constitute a special reason calling for the duty of keeping a...