Central of Georgia Ry. Co. v. Forshee

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, C.J.
• Citation: 27 So. 1006,125 Ala. 199
• Decision Date: 10 April 1900
• Parties: CENTRAL OF GEORGIA RY. CO. v. FORSHEE ET AL.

27 So. 1006

125 Ala. 199

CENTRAL OF GEORGIA RY. CO.
v.
FORSHEE ET AL.

Supreme Court of Alabama

April 10, 1900

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 death."

To the first count of the complaint the defendant demurred upon the following grounds: "(1) It is not shown how or in what manner the defendant...