Central of Georgia Ry. Co. v. Martin

Decision Date24 November 1903
Citation138 Ala. 531,36 So. 426
PartiesCENTRAL OF GEORGIA RY. CO. v. MARTIN. [a1]
CourtAlabama 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:

"(1) The plaintiff claims of the defendant the sum of thirty thousand dollars as damages, for that on and prior to the 31st day of July, 1900, the defendant, as a body corporate engaged in operating cars for the carriage of freight and passengers for hire in and beyond the county of Jefferson in the state of Alabama, and in its business of operating a railroad, the defendant used, in common with the Southern Railway Company, a railroad track beyond Woodlawn in the direction of Columbus, Georgia; and the plaintiff avers that on said 31st day of July, 1900, the plaintiff was a locomotive engineer in the service of the Southern Railway Company, and as such engineer was running an engine, with a train of cars attached, from Atlanta, Georgia, to Birmingham, Alabama, and the engine which plaintiff was operating was on said 31st day of July, 1900, coming towards Birmingham, over the line of railroad east of Woodlawn, which line was also being used by the said Central of Georgia Railway Company; and the plaintiff avers that at a point about one mile east of Woodlawn the defendant's employés in charge of one of its trains had caused said train to be stopped and to be left standing on the same track which was in use by both the Southern Railway Company and the Central of Georgia Railway Company and, as the engine which plaintiff was operating, as above stated, rounded a curve coming towards Birmingham, the said engine, a short distance west of said curve, ran into the train of cars left standing upon said track by the employés of defendant, and the plaintiff, seeing the impending collision, was forced to jump or fall from his engine to save his life, and in so jumping or falling was seriously injured in the hips, spine, shoulders, and arms, and other parts of his body, and also suffered serious internal injuries, from all of which he has been rendered unable to work and earn a living, and he has been permanently disabled. And the plaintiff avers that the said injuries were caused by the negligence of the defendant's employés in the management and operation of defendant's said train with which the engine then being operated by the plaintiff collided."

(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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16 cases
  • Birmingham Ry., Light & Power Co. v. Moore
    • United States
    • Alabama Supreme Court
    • January 30, 1906
    ... ... v. Thompson, 62 Ala. 494; L. & N. R. R. Co., ... v. Jones, 83 Ala. 376, 3 So. 902; Central of Georgia ... R. R. Co. v. Martin, 138 Ala. 531, 36 So. 426; Southern ... Ry Co. v. Burgess ... ...
  • West Pratt Coal Co. v. Andrews
    • United States
    • Alabama Supreme Court
    • December 19, 1906
    ...Tadlock to the question: "He [plaintiff] knew the way the trestle was shaky?" Bailey's Case, 107 Ala. 151, 18 So. 234; Cen. of Ga. Ry. v. Martin, 138 Ala. 531, 36 So. 426; Braham's Case, 143 Ala. 28, 38 So. 919; Liner's Case, 124 Ala. 1, 27 So. 436. The ruling of the court refusing to exclu......
  • Alabama Great Southern R. Co. v. Johnston, 2 Div. 493
    • United States
    • Alabama Supreme Court
    • June 1, 1967
    ...authority because the rule in Alabama which prevails as to livestock, does not obtain as to human beings. Central of Georgia Ry. Co. v. Martin, 138 Ala. 531, 544, 36 So. 426, 430. In the Carter case, supra, the collision was at a private, not a public, crossing. This court said, in part: 'T......
  • Jones v. White
    • United States
    • Alabama Supreme Court
    • November 7, 1914
    ... ... some other person would know, and the objection was properly ... sustained. Central of Georgia Railway Co. v. Martin, ... 138 Ala. 531, 36 So. 426. In addition to this, the question ... ...
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