Central of Georgia Ry. Co. v. Martin
Decision Date | 24 November 1903 |
Parties | CENTRAL OF GEORGIA RY. CO. v. MARTIN. [a1] |
Court | Alabama Supreme Court |
Appeal from City Court of Birmingham; W. W. Wilkerson, Judge.
Action by Joseph G. Martin against the Central of Georgia Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
This was an action brought by the appellee, Joseph G. Martin against the Central of Georgia Railway, to recover damages for personal injuries alleged to have been sustained by the plaintiff on account of the negligence of the defendant. The complaint, as amended, contained four counts. The court gave the general affirmative charge for the defendant as to counts numbered 2 and 3, and the cause was tried upon issue made up on the pleadings as to counts numbered 1 and 4. These counts are as follows:
(4) After the same preliminary averments as in the first count this count alleges as follows: "And plaintiff avers that, at a point about one mile east of Woodlawn, the defendant's employés in charge of one of its trains suffered or permitted the same to become delayed, and be on said track used by both the said Southern Railway and the defendant, and the engine which plaintiff was operating as aforesaid, when turning a curve coming in the direction of Birmingham, ran into the train so being on said track and collided therewith, in which collision plaintiff was seriously injured, which injuries are specifically described and set out in the first count of this complaint, which description is made a part of this count; and plaintiff avers that his said injuries were proximately caused by the negligence of defendant's servants, or some of them, in charge of said train; that said negligence consisted in this: that said train was negligently allowed or suffered to be upon said track where it was when it should have been away from there; wherefore plaintiff sues."
To each of said counts 1 and 4 the defendant demurred upon the following grounds: (1) It is not shown by said count what duty in the management and operation of its train defendant owed the plaintiff. (2) It is not shown that defendant neglected any duty towards plaintiff which caused or contributed to cause the injuries complained of. (3) It is not shown how or in what manner defendant's employés were negligent. (4) Said count is vague and indefinite. (5) It appears from said count that plaintiff was injured by reason of the negligence of a fellow servant.
To each of these counts the defendant filed nine special pleas, which were as follows: (1) It is not guilty. (2) It denies each and every allegation thereof. (3) For further answer to each count of the complaint, separately and severally, defendant says that plaintiff was guilty of negligence which proximately contributed to his injury, in this: that plaintiff, well knowing that the said track where the collision occurred was used in common by defendant and said Southern Railway Company, and that frequently trains of cars were on said track, propelled and drove his engine and train on said track and around said curve at such a high or rapid rate of speed that after reaching a point from which he could see defendant's said train on said track it was impossible for plaintiff to stop his said train and prevent or avoid a collision with defendant's said train. (4) For further answer to each count of the complaint, separately and severally, defendant says that plaintiff was guilty of negligence which proximately contributed to produce the injuries complained of, in this: that plaintiff ran his said engine and train at such a rate of speed that it was impossible, after discovering defendant's said train on said track, for plaintiff to stop his said engine and train and prevent a collision with defendant's said train. (5) For further answer to each count of the complaint, separately and severally, defendant says that plaintiff was guilty of negligence which proximately contributed to his injury, in this: that the place where said collision occurred and said injuries are alleged to have been received is in a city town, or village, and defendant avers that plaintiff failed or neglected to blow the whistle or ring the bell of his said engine at short intervals on entering into, or running within, or passing through, said village, town, or city. (6) For further answer to each count of the complaint, separately and severally, defendant says that the plaintiff was guilty of negligence which proximately contributed to his injury, in this: that said collision occurred at or near a public road crossing, and defendant avers that plaintiff failed or neglected to blow the whistle or ring the bell of his said engine one-fourth of a mile before reaching said public road crossing, or failed or neglected to continue to blow the whistle or ring the bell at short intervals until said engine had passed said crossing. (7) For further answer to each count of the complaint, separately and severally, defendant says that the plaintiff was guilty of negligence, which proximately contributed to produce the injuries complained of, in the management and operation of the engine upon which plaintiff then was, and of which he was in charge. (8) For further answer to the first and second and fourth counts of the complaint herein, as amended, separately and severally, defendant says that to reach the point where the collision occurred, and where plaintiff was injured, plaintiff had to and did run his said engine, drawing his said train, into and within the limits of Woodlawn, a municipal corporation duly organized under the laws of the state of Alabama; that at and before the time of said collision there was in force an ordinance of said municipal corporation of Woodlawn, in words and figures as follows, viz.: [Here follows ordinance prohibiting the running of engine within the corporate limits at a greater rate of speed than eight miles an hour when running forward.] And defendant avers that the plaintiff negligently ran his said engine within the corporate limits of Woodlawn at a greater rate of speed than eight miles per hour when running forward, in violation of said ordinance, and that the said negligence of plaintiff in this respect proximately contributed to his injury. (9) For further answer to the first, second, and fourth counts of the complaint herein, separately and severally, defendant says that, at and before the time mentioned in each of said counts, the town of Woodlawn was a municipal corporation, duly organized under the laws of the state of Alabama; that said town of Woodlawn embraced the north half and southwest quarter of a certain section of land; that the railroad tracks used in common between the Southern Railway Company and this defendant run diagonally through and across the northeast quarter of said section a distance of 650 feet to the southern line of said quarter section, where they cross said quarter section line and run outside the limits of Woodlawn across the southeast quarter of said section, a distance of 650 feet, to the eastern line of said southwest quarter of said section; that said tracks enter said southwest quarter of said section at said point, and run across the same in a straight line, east and west; that the plaintiff ran the train upon which he was riding when injured into and within the corporate limits of Woodlawn, and over and across said northeast quarter and southeast quarter of said section, at the rate of over eight miles an hour; that the collision between the engine upon which plaintiff was riding and the rear end of defendant's train occurred in said...
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