Central of Georgia Ry. Co. v. Bates

• Decision Date: 13 October 1932
• Docket Number: 7 Div. 109.
• Citation: 144 So. 9,225 Ala. 519
• Parties: CENTRAL OF GEORGIA RY. CO. v. BATES.
• Court: Alabama Supreme Court

144 So. 9

225 Ala. 519

CENTRAL OF GEORGIA RY. CO. v. BATES.

7 Div. 109.

Supreme Court of Alabama

October 13, 1932

Rehearing Denied Nov. 3, 1932.

Appeal from Circuit Court, Shelby County; E. P. Gay, Judge.

Action under homicide act by M. J. Bates, as administrator of the estate of Mrs. L. B. Bates, deceased, against the Central of Georgia Railway Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

Nesbit Sadler & Dunn, of Birmingham, for appellant.

L. H Ellis, of Columbiana, for appellee.

THOMAS J.

The suit was for damages for wrongful death. The trial was had on count 3 for subsequent negligence and count AA charging "such servant, servants, agent or agents of the defendant wantonly, wilfully, intentionally and wrongfully caused and engine of said train or some part thereof to run upon, over or against plaintiff's intestate, and as a proximate consequence thereof she was killed." The pleas thereto were in short by consent.

The refusal of the general affirmative charge as to count AA is assigned as error.

The distinction between wanton misconduct as applied to negligence resulting in injury, and intentional wrong, is well stated by our decisions. Allision Coal & Transfer Co. v. Davis, 221 Ala. 334, 129 So. 9; Birmingham Ry. L. & P. Co. v. Landrum, 153 Ala. 192, 194, 45 So. 198, 127 Am. St. Rep. 25; Southern Ry. Co. v. Benefield, 172 Ala. 588, 55 So. 252, 35 L. R. A. (N. S.) 420; Ashley v. McMurray, 222 Ala. 32, 130 So. 401; Memphis & Charleston Railroad Co. v. Martin, 117 Ala. 367, 382, 23 So. 231; Birmingham Railway & Electric Co. v. Bowers, 110 Ala. 328, 331, 20 So. 345; Louisville & Nashville Railroad Co. v. Anchors, Adm'r, 114 Ala. 492, 22 So. 279, 62 Am. St. Rep. 116; Central of Georgia Ry. Co. v. Corbitt, 218 Ala. 410, 118 So. 755; Jones v. Keith, 223 Ala. 36, 134 So. 630; Alabama Power Co. v. Gooch, 221 Ala. 325, 128 So. 793. In the present case it is necessary to consider whether or not there was sufficient evidence to justify a finding that the engineer, not merely was guilty of indifference to the consequences of his conscious conduct, but had the purpose to injure the person he did injure; the person he saw in danger or within the zone of danger at or near the time of such injury. The evidence has been carefully examined, and the question of wantonness and subsequent negligence is clearly warranted under the evidence. Southern Railway Co. v. Smith, 177 Ala. 367, 58 So. 429; Turbeville v. Mobile Light & Ry. Co., 221 Ala. 91, 127 So. 519; Central of Georgia Ry. Co. v. Stewart, 178 Ala. 651, 59 So. 507. Such were the adverse inferences within the evidence. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. Count AA charges wantonness and willful injury conjunctively. As to the element of willful injury, the preventive means which the evidence shows were resorted to by the engineer are inconsistent with the purpose and design to injure or kill deceased Walker v. Alabama, Tennessee & Northern Ry. Co., 194 Ala. 360, 70 So. 125; Rush v. Central of Georgia Ry. Co., 223 Ala. 119, 134 So. 619. The burden of proof as to the willful intent to injure was upon the plaintiff. Smith v. Louisville & Nashville R. R. Co., 219 Ala. 676, 679, 123 So. 57, and authorities; Central of Georgia Ry. Co. v. Graham, 220 Ala. 645, 127 So. 213.

The rule as to negligence, after discovery of peril, has been fully stated by this court; it is predicated on actual knowledge of peril, and failure to take due and available preventive action. Copeland v. Central of Georgia Ry Co., 213 Ala. 620, 105 So. 809; Snyder v. Mobile Light & Ry. Co., 214 Ala. 310, 312, 107 So. 451; Turbeville v. Mobile Light & R. Co., 221 Ala. 91, 95, 127 So. 519; Bickerstaff v. Illinois Central R. Co., 210 Ala. 280, 97 So. 842; Central of Georgia Ry. Co. v. Blackmon, 169 Ala. 304, 53 So. 805; Illinois Central Ry. Co. v. Martin, 213 Ala. 617, 619, 105 So. 805. The injury was 200 yards from the crossing; there was no intervening obstruction; the engineer had immediately theretofore seen the deceased about three or four hundred yards down the track; the situation at the crossing had cleared; he knew the circumstances of time, place, and distance within the town, and the constant and actual use of the walkway along the track; the decedent was proceeding with her back to the advancing train against the wind that was blowing, and she was in dangerous proximity to the track on which his engine was rapidly proceeding, and the engineer employed the only preventive means and agencies at hand from and after he had approached within ninety feet of Mrs. Bates. The engineer's statement, among other things, was: "I saw people walking along the right of way there at Sylacauga practically all of the time. There is not anything new or unusual to see...