Central of Georgia Ry. Co. v. Blackmon

Decision Date17 November 1910
Citation53 So. 805,169 Ala. 304
PartiesCENTRAL OF GEORGIA RY. CO. v. BLACKMON.
CourtAlabama Supreme Court

Rehearing Denied Dec. 22, 1910.

Appeal from Circuit Court, Dale County; M. Sollie, Judge.

Action by James H. Blackmon, administrator, against the Central of Georgia Railway Company, for damages for the death of his intestate. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Count 1 is as follows: "The plaintiff, as administrator, claims of the defendant the sum of $20,000 as damages, for this That the defendant, on or about September 9, 1908, was engaged in operating a railroad in said county and running trains thereon for the transportation of passengers and freight. That on or about said date one of defendant's trains, consisting of an engine and cars thereto attached was being run on its said railroad by its servants and agents in said county near a public road crossing, said public road leading out from Ozark towards Barnes' Crossroads, and crossing defendant's said railroad at a point a little over a mile from the courthouse in the town of Ozark. Plaintiff avers that his intestate was walking along a path that was on a roadbed of defendant, and that he was walking said path at a point about 150 to 250 yards from the said public road crossing; that said intestate was coming towards Ozark, Ala., walking along said pathway, and that, while said intestate was walking along said pathway along said roadbed the said engine and cars were coming from Ozark, being propelled by steam, and were approaching said intestate being under the management and in charge of defendant's agents and servants; that plaintiff's intestate was put in peril of his life or great bodily harm by said approaching train; that the agents and servants of defendant in charge of said engine and cars saw said peril of plaintiff's intestate, and saw that plaintiff's intestate could not avoid being injured; that after the discovery of intestate's peril the agents and servants of the defendant in charge of said engine and cars so negligently and carelessly conducted themselves in the management of said engine and cars that said engine was caused by reason of such negligence to run upon intestate, and inflicted upon him injuries from which he died in a very few hours."

The demurrers raise the points indicated in the opinion. The following were the pleas filed by the defendant: "(2) That plaintiff's intestate was himself guilty of negligence, which proximately contributed to his injuries and death, in this: Plaintiff's said intestate got upon defendant's track and roadbed, and walked along the same for some distance, and at the time he received the injuries from which he died was walking along defendant's said track and roadbed, and was at the time walking in the direction from which the train which struck him was coming; that is, he was facing or meeting said train, and he negligently remained on said track or roadbed in dangerous proximity to said train then and there approaching, and until he was struck and injured, and that said acts on the part of the plaintiff's said intestate were done by him or committed by him with the knowledge on his part of his danger or peril. (3) That plaintiff's said intestate was himself guilty of negligence, which proximately contributed to his injuries and death, in this: Plaintiff's said intestate negligently went to the defendant's track or roadbed, and negligently remained on said track or roadbed when the train which struck him was in dangerous proximity to him, and remained on said track or roadbed until said train ran against him and struck him, with the knowledge on his part of his peril in so doing. (4) That plaintiff's intestate negligently went upon defendant's track or roadbed, and walked down the same in the direction from which the train which struck him was coming, until he was struck by said train, and with the knowledge on his part of his peril in so doing."

G. L. Comer, for appellant.

H. L. Martin, for appellee.

ANDERSON J.

The intestate being a trespasser on the defendant's track at the time he was run over or against, and at a point where the defendant owed him no duty to keep a lookout, the defendant's servants owed him only the duty of preventing the injury, if they could do so, after discovering his peril on the track, and after becoming aware that he could not or would not extricate himself therefrom. Southern R. Co. v Gullatt, 150 Ala. 318, 43 So. 577; Southern R. Co. v. Bush, 122 Ala. 470, Birmingham R. Co. v. Jones, 153 Ala. 168, 45 So. 177. We do not understand the authorities to hold that the only duty owing a trespasser is not to willfully or wantonly injure him, but they also permit a recovery for subsequent negligence as well--that is, for a negligent failure to use preventative means to avert injury after a discovery of peril, and after a knowledge that the trespasser cannot extricate himself in time to avoid being injured--notwithstanding the act or omission of the servants in charge of the train did not amount to willful misconduct or wanton negligence. It is true we have authorities, as noticed in section 414, p. 636, vol. 4, May-field's Digest, which in effect hold that a complaint which shows that the plaintiff was a trespasser when injured is bad on demurrer if it fails to aver wanton or willful misconduct. But these cases were decided before the doctrine of subsequent negligence had gained much footing in this state, and the negligence there charged was original or initiative negligence as distinguished from subsequent negligence or negligence after a discovery of peril. We think the true rule as testing the sufficiency of a complaint, is that when simple negligence only is charged--that is, initial negligence--it should bring the plaintiff within the protection of the rule and show that he was not a trespasser. Holland v. L. & N. R. R. Co., 51 So. 366; Gadsden R. R. Co. v. Julian, 133 Ala. 373, 32 So. 135. ...

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29 cases
  • Louisville & N.R. Co. v. Johns
    • United States
    • Alabama Supreme Court
    • March 6, 1958
    ...provided the intestate himself was free from negligence after becoming conscious of his danger. * * * ' Central of Georgia Railway Co. v. Blackmon, 169 Ala. 304, 310, 53 So. 805, 807. See, also: Birmingham Ry., Light & Power Co. v. Aetna Accident & Liability Co., 184 Ala. 601, 64 So. 44; Sp......
  • Callaway v. Griffin
    • United States
    • Alabama Supreme Court
    • June 15, 1944
    ... ... between the rails of the track at an isolated spot between 8 ... and 9 o'clock, Central War time, on the night of July ... 24th, 1942, at a point between the trestle which spans ... subsequent negligence, but initial or antecedent negligence ... Central of Georgia Ry. Co. v. Blackmon, 169 Ala ... 304, 53 So. 805 ... It has ... been declared by ... ...
  • Kendrick v. Birmingham Southern Ry. Co., 6 Div. 781
    • United States
    • Alabama Supreme Court
    • October 19, 1950
    ... ... Rush v. Central of Ga. Ry. Co., 223 Ala. 119, 134 So. 619 ...         Appellant does not assert that ...         The following quotation from the opinion in Central of Ga. Ry. Co. v. Blackmon, 169 ... Page 326 ... Ala. 304, 53 So. 805, is authority for the trial court's action in ... ...
  • Gilbert v. St. Louis-San Francisco R. Co., LOUIS-SAN
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 20, 1975
    ...1932, 224 Ala. 642, 141 So. 561; Central of Georgia Ry. Co. v. Ellison, 1917, 199 Ala. 571, 75 So. 159; Central of Georgia Ry. Co. v. Blackmon, 1910, 169 Ala. 304, 53 So. 805; Central R.R. & Banking Co. v. Vaughan, 1890, 93 Ala. 209, 9 So. 468. Likewise, the federal requirement of a conflic......
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