Appeal
from city court of Birmingham; William W. Wilkerson, Judge.
Action
by J. W. Forshee and others, administrators of Mary Auther
deceased, against the Central of Georgia Railway Company, for
death of intestate. From a judgment in favor of plaintiffs
defendant appeals. Reversed.
The
complaint, as originally filed, contained five counts. It was
subsequently amended by the addition of three other counts.
The fourth and seventh counts were stricken on motion of the
plaintiff. The first count of the amended complaint is as
follows: "First Count. The plaintiffs claim of the
defendant twenty thousand dollars damages, for that the
defendant owned and operated a railroad from Columbus, in the
state of Georgia, to Birmingham, in the state of Alabama
upon and over which defendant ran engines and trains of cars
propelled by steam, for the transportation of passengers and
freight for hire; that on, to wit, the 15th day of December
1897, the defendant's agents and servants, while engaged
in running an engine, to which was attached a train of cars
upon and over said railroad between Birmingham, Alabama, and
Columbus, Georgia, so negligently and carelessly conducted
themselves in and about the management of said engine and
train of cars that the said engine was caused to run against
plaintiff's intestate, Mary Auther, at a street crossing
within the limits of the town of Goodwater, in Coosa county,
Alabama, a station on defendant's railroad, thereby
causing the death of the said Mary Auther." The other
averments of negligence, as contained in the respective
counts of the amended complaint, were as follows: "The
plaintiffs claim of the defendant twenty thousand dollars
damages, for that the defendant owned and operated a railroad
from Columbus, in the state of Georgia, to Birmingham, in the
state of Alabama, upon and over which defendant ran engines
and trains of cars, propelled by steam, for the
transportation of passengers and freight for hire; that on,
to wit, the 15th day of December, 1897, plaintiff's
intestate was lawfully crossing said railroad at a public
street crossing within the limits of the town of Goodwater,
in Coosa county, Alabama, a station on defendant's said
railroad, and defendant's agents and servants while
engaged in running an engine, to which was attached a train
of cars, upon and over said railroad between Birmingham,
Alabama, and Columbus, Georgia, so negligently and carelessly
conducted themselves in and about the management of said
engine and train of cars, that the said engine was caused to
run against plaintiff's intestate, Mary Auther, at said
public street crossing, thereby causing the death of said
Mary Auther. (2) Defendant's agents and servants, while
running an engine to which was attached a train of cars upon
and over said railroad between Birmingham, Alabama, and
Columbus, Georgia, negligently and carelessly failed to blow
the whistle or to ring the bell at least one-fourth of a mile
before reaching said public street crossing in the town of
Goodwater, Alabama, and to continue to blow the whistle or to
ring the bell at short intervals until said engine and train
of cars passed such crossing, and by reason of such failure
the said engine and train of cars were caused to run against
plaintiff's intestate, the said Mary Auther, at the said
street crossing in the said town of Goodwater, thereby
causing her death. (3) Defendant's agents and servants
while engaged in running an engine and train of cars upon and
over said railroad between Birmingham, Alabama, and Columbus,
Georgia, negligently and carelessly caused an engine and
train of cars to approach and cross said public street
crossing in the town of Goodwater, Alabama, where a foot
passenger walking along said street and across said railroad
track, or an obstruction at the said crossing, could not be
seen by the engineer or other person or persons, agents, and
servants of defendant operating and managing said engine and
train of cars for a distance of two hundred yards before
arriving at said street crossing, owing to a cut through
which said railroad passed on a curve. The street crossed
said railroad track at the southern or southeastern end of
said cut, and within the limits of the said town of
Goodwater. And on said 15th day of December, 1897, said
engine and train of cars was caused to run in a southeastern
direction, going from Birmingham, Alabama, to Columbus,
Georgia, at such a high rate of speed that the engine and
train of cars could not be so managed by such agents and
servants of the defendant, after they had arrived within a
distance from which they could have discovered a person or an
obstruction on the track at the said crossing, as to prevent
an accident in the event a person or an obstruction was at
the said crossing; and said engine and train of cars, so
operated, run, and managed as aforesaid, ran against the
plaintiff's intestate at the street crossing aforesaid on
the 15th day of December, 1897, thereby causing her
death." "(5) That while the plaintiff's
intestate, said Mary Auther, was crossing the track of
defendant's said railroad at a public street crossing
within the limits of the town of Goodwater, Alabama, which is
a populous town, of over five hundred inhabitants, and a
station on said railroad, an engine and train of cars going
from the direction of Birmingham, Alabama, in the direction
of Columbus, Georgia, which is a southeastern direction,
operated and managed by the servants and agents of the
defendant, ran against her, the said Mary Auther, thereby
causing her death; that said street crossed defendant's
railroad track at the southern or southeastern end of a deep
cut, through which the defendant's sail railroad track
passed on a curve, and the sides of said cut, and the
elevation through which it was made, so obstructed the view
of the agents and servants of defendant when running an
engine and a train of cars in the direction of Columbus,
Georgia, that they could not see a person or an obstruction
at the street crossing where the engine ran against the said
Mary Auther, causing her death, as aforesaid, in the event a
person or an obstruction was there, until they arrived within
two hundred yards of said crossing; that on said 15th day of
December, 1897, the defendant's agents and servants, well
knowing of the street crossing, and that it was a main
thoroughfare in a populous town, and that people there
crossed the railroad track of defendant frequently every day,
and that some person would probably be crossing said track at
said time and place, in disregard of the rights of the public
and of plaintiff's intestate to cross said railroad track
at said place, and being wholly indifferent to the
consequences of the acts and conduct, recklessly and wantonly
propelled said engine and train of cars there along, going in
the direction of Columbus, Georgia, neglecting to give
necessary signals sufficient to warn persons of the approach
of said train, and at such rapid speed that said engine and
train of cars could not be checked or stopped after the
agents and servants of defendant operating and managing the
same were near enough to discover a person or an obstruction
on the railroad track at said street crossing, in the event a
person or an obstruction was there, in time to prevent an
accident at the crossing, thereby greatly and unnecessarily
endangering the lives of persons who would probably be
crossing said railroad track at said place, which acts and
conduct of the defendant's agents and servants caused the
said engine to run against the said Mary Auther at said
street crossing on said 15th day of December, 1897, causing
her death, as aforesaid. (6) That on, to wit, the 15th day of
December, 1897, the defendant's agents and servants,
while engaged in running an engine, to which was attached a
train of cars, upon and over said railroad, between
Birmingham, Alabama, and Columbus, Georgia, recklessly and
wantonly, or intentionally, ran said engine and train of cars
against plaintiff's intestate, Mary Auther, at a street
crossing within the limits of the town of Goodwater, in Coosa
county, Alabama, a station on defendant's said railroad,
thereby causing the death of said Mary Auther."
"(8) That on, to wit, the 15th day of December, 1897,
plaintiff's intestate was lawfully crossing said railway
at a public street crossing within the limits of the town of
Goodwater, Alabama, a station on defendant's said
railroad, and the defendant's agents and servants, while
running an engine and train of cars upon and over said
railroad between Birmingham, Alabama, and Columbus, Georgia,
negligently and carelessly ran said engine and train of cars
at a greater rate of speed than six miles per hour within the
corporate limits of the said town of Goodwater, Alabama,
which said town is incorporated under the laws of Alabama,
and in violation of an ordinance of said town of Goodwater in
the words and figures as follows: 'Sec. 69. Be it further
ordained and enacted that it shall be unlawful for trains to
run at a greater rate of speed than six miles per hour within
the incorporate limits of the town of Goodwater, Ala., and
any engineer or conductor who shall cause any engine or train
to run at a greater rate of speed than six miles an hour
within the corporate limits of said town shall be guilty of a
misdemeanor and on conviction thereof shall be fined not less
than five nor more than twenty-five dollars.' And by
reason of such negligence and carelessness the said engine
and train of cars were caused to run against plaintiff's
intestate, the said Mary Auther, at said public street
crossing in said town of Goodwater, thereby causing her...
