Central of Georgia Ry. Co. v. Fuller

• Decision Date: 11 November 1909
• Citation: 164 Ala. 196,51 So. 309
• Parties: CENTRAL OF GEORGIA RY. CO. v. FULLER.
• Court: Alabama Supreme Court

51 So. 309

164 Ala. 196

CENTRAL OF GEORGIA RY. CO. v. FULLER.

Supreme Court of Alabama

November 11, 1909

Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.

Action by Lelia R. Fuller against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charge 2, referred to, is the affirmative charge as to the sixth count. Count 6 is as follows: "Plaintiff claims of the defendant $2,000 damages for the following: The defendant owns and operates a railroad, and has been for some years owning and operating said railroad, as a common carrier, from a point 2 1/2 miles east of Opelika, in Lee county, Alabama to the town of Roanoke, in Randolph county, Alabama, and running through the county of Chambers, and the town of La Fayette in said county of Chambers; that on the 15th day of December, 1906, a locomotive of defendant, with a train of cars attached, and being in charge of a train crew of the defendant, consisting of an engineer, fireman, and conductor and other agents of defendant, was running along the track of defendant's railroad from the direction of Roanoke, and towards Opelika, and after leaving the depot at La Fayette said locomotive, with cars attached, was so carelessly and negligently managed and controlled by the parties in charge of the same, in running and operating the same, that said engine, as the proximate result of said negligence, was run up to and within a few feet of the buggy of plaintiff, while plaintiff was in said buggy, on or near said crossing, and in which plaintiff was traveling across a public crossing which crosses the railroad of defendant about one-half mile below the depot at La Fayette, on the public road leading from La Fayette to Opelika, frightening the horse attached to said buggy, and causing the horse, in an effort to escape a collision with the engine, to run the buggy against the telephone pole, and as a result of said collision plaintiff was thrown from her buggy, and thrown violently to the ground, cutting and bruising her face, as well as injuring one of her limbs, and severely injuring her internally, and causing her great pain, suffering, and mental anguish, to the damage of plaintiff as aforesaid."

George P. Harrison, for appellant.

R. B Barnes, for appellee.

McCLELLAN J.

Action for personal injuries. Seven counts were at various times filed, but count 6 was the only one submitted to the jury. This count was added by amendment, and as a part of it count 2, down to and including the word "locomotive" in the fourteenth line of count 2 was adopted. Count 2, as copied in this transcript, does not show the word "locomotive" in the fourteenth line. Notwithstanding this confusion and indefiniteness, we have undertaken to interpret the amendment, making count 6, so as to render it intelligible, and to accord with the view of its phraseology as shown by briefs of counsel for appellee as well as appellant, in order that a review of the legal questions presented may be here had. The reporter will set out the count as we take it to have been originally filed.

The gravamen of count 6 is the fright of the horse driven by plaintiff (appellee). We draw from the count this state of presently important averment: The employés of the defendant so carelessly and negligently managed and controlled one of defendant's trains that, as a proximate result of that negligence, the horse attached to a buggy occupied by plaintiff was frightened, and caused the horse, in an effort to escape a collision with the engine, to run the buggy against a telephone pole, throwing plaintiff to the ground and injuring her. In Oxford Lake Line Co. v Stedman, 101 Ala. 376, 13 So. 553, this court, following previous adjudications, defined the duty of railroad companies in respect of frightening animals, and declared the rule for the determination of negligence vel non in that regard. The substance of that announcement is that railroad companies have the right to operate their trains; that such companies have the right to make all the usual noises incident to the operation of their trains; and that negligence, alleged to have resulted in frightening an animal, cannot be predicated upon the operation of a train unless in so doing unnecessary noises were made, and these...