Central of Georgia Ry. Co. v. Stewart

• Citation: 178 Ala. 651,59 So. 507
• Parties: CENTRAL OF GEORGIA RY. CO. v. STEWART.
• Decision Date: 08 February 1912
• Court: Supreme Court of Alabama

59 So. 507

178 Ala. 651

CENTRAL OF GEORGIA RY. CO. v. STEWART.

Supreme Court of Alabama

February 8, 1912

Rehearing Denied June 29, 1912.

Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.

Action by Charity B. Stewart, as administratrix, against Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The first count was for wanton or willful injury. The second count was for subsequent negligence after the discovery by the servants or agents of the defendant of the peril of plaintiff's intestate on or near the track, and of failure to use preventive effort by them to avoid injury.

The following are the charges refused to the defendant as numbered on the margin by this court: (7) "The burden of proof, in so far as count 2 of the complaint is concerned, is upon the plaintiff to show to your reasonable satisfaction that the defendant's employés, or some of them, in charge or control of the engine which killed plaintiff's intestate, discovered said intestate on the track in time to avoid injuring him by the exercise of due care and preventive efforts, and that, after the discovery of such peril, they failed to exercise such care as a reasonably prudent man would have exercised to prevent the injury." (8) "No one of the trainmen was under any duty to try to stop the train until they knew that Mr. Stewart was unaware of the approach of the train (or was not going to get off the track), and if they then exercised the usual care of an ordinarily prudent person under like circumstances to stop the train, or check its speed, the plaintiff is not entitled to recover, even though a quicker method or different method of handling the train might have stopped the train, or so reduced its speed as to have prevented killing Mr Stewart." (9) "Even if the jury believe that the train could have been stopped in time to have avoided striking Mr. Stewart, after it became known to the trainmen that he was not going to step off the track, you cannot for that reason find a verdict for the plaintiff; but the defendant is not liable for such failure to stop the train as quickly as it might have been stopped, unless the stop was not more quickly made because of some failure of one or more of the trainmen to exercise the care of an ordinarily prudent person under the same circumstances." (3) Affirmative charge as to the first count. (10) "If, after a careful consideration of all the evidence, the jury should determine to award plaintiff damages, they cannot in estimating the amount consider the pecuniary value of the life of Stewart but can only award damages by way of punishment to the defendant, and if the jury believe that damages in a small amount would be sufficient punishment for the act, omission or negligence of its engineer, it would be unjust to award damages in a large amount."

London & Fitts, of Birmingham, for appellant.

Riddle Ellis, Riddle & Pruett, of...