Central of Georgia Ry. Co. v. Hyatt

• Citation: 43 So. 867,151 Ala. 355
• Parties: CENTRAL OF GEORGIA RY. CO. v. HYATT.
• Decision Date: 02 March 1907
• Court: Supreme Court of Alabama

43 So. 867

151 Ala. 355

CENTRAL OF GEORGIA RY. CO. v. HYATT.

Supreme Court of Alabama

March 2, 1907

Rehearing Denied May 14, 1907.

Appeal from Circuit Court, Russell County; A. A. Evans, Judge.

Action by J. R. Hyatt, administrator, against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action by Hyatt, as administrator of R. S. Kite deceased, against the Central of Georgia Railway Company, for damages on account of the negligent killing of his intestate which occurred at a crossing of the public road with the railroad, and was occasioned by an engine of defendant running ahead of a regular freight train. The evidence tended to show that Kite was driving along the public road and across the track of the defendant railroad company, when he was struck by an engine detached and running ahead of a regular freight train. The detached engine was several hundred yards ahead of the freight train, and the evidence was in dispute as to whether or not such detached engine had a headlight. The evidence further tended to show that the noise of the freight train was greater than that of the detached engine, and one approaching the crossing could hear the freight, and not hear the detached engine. The contents of the pleading are sufficiently set out in the opinion of the court.

After the witness Crawford had testified that he went to the point of killing with the switch engine, and took observation from the engine, and that a man on the engine could see a man approaching that track from the north to the crossing for 400 feet before he got on it, with the exception of the time the man might be behind some bushes along there, the plaintiff asked him the question as to whether his opportunity for seeing a man approaching the crossing was equal to the man's opportunity approaching the crossing seeing the train. Objection was interposed to the question, and overruled. He answered that the opportunities would be approximately the same. The defendant also moved to exclude the answer.

The defendant requested the following written charges, which were refused:

(1) General affirmative charge.

(2) Affirmative charge as to the first and second counts.

(3) "If the jury believe the evidence in this case, they must find in favor of the defendant, unless they find from the evidence that the killing of Mr. Kite was done by the employés of the defendant wantonly, intentionally, or recklessly."

(4) "Unless the jury are reasonably satisfied that the killing of Mr. Kite was done by the employés of the defendant wantonly, intentionally, or recklessly, they must find a verdict in favor of the defendant."

(5) "If the jury believe from the evidence that Mr. Kite failed to stop, look, and listen for approaching engines or trains before he crossed or attempted to cross the railroad track, then such failure on his part is not only evidence of negligence, but is negligence itself."

(6) "Unless the jury are reasonably satisfied from the evidence that the employés of the defendant, who were in charge of the engine which killed Mr. Kite, failed to exercise reasonable care to avoid the injury after Mr. Kite had been discovered and his peril of injury had become apparent to said employés, then you should not find against the defendant on the third count of the complaint."

(7) "If the jury believe from the evidence in this case that Kite, the deceased, just before he attempted to cross the railroad track, failed to stop, look, and listen to ascertain whether a train of cars or engine was approaching said crossing where he attempted to cross, then the court charges you that the plaintiff would not be entitled to recover in this case on the first and second counts of the complaint."

(8) "The court charges the jury that, although they believe from the evidence that the employés of the defendant were guilty of gross negligence in running the engine at the time but that they did not see Mr. Kite and did not discover his perilous position in time to avoid striking him by the exercise of due care and diligence on their part, yet if the jury further believe from the evidence that Mr. Kite was, at the time he attempted to cross the railroad, also guilty of gross negligence, and that such gross negligence on the part of Mr. Kite proximately contributed to his death, then the plaintiff cannot recover in this case."

(22) "The court charges the jury that, although they may believe from the evidence [the remainder being an exact duplicate of charge 8]."

(23) "The court charges the jury that if at the time Mr. Kite was approaching Knuckles' crossing he was drunk, or very much under the influence of liquor, and that he by his own fault or wrong forced the horse he was driving into a gallop or caused the horse to run away, and that while he was so galloping or running away Mr. Kite attempted to cross the railroad at said crossing, in front of an approaching engine which could have been seen by him, and that while so attempting to cross said railroad he was killed, then said Kite would be guilty of gross negligence."

(9) "If the jury believe from the evidence in this case that the deceased, Kite, failed to stop, look, and listen for approaching engines or trains before he crossed or attempted to cross the railroad track, and such failure proximately contributed to his injury, then they must find for the defendant, unless the jury further believe from the evidence that the killing of said deceased by the employés of the defendant was done willfully, intentionally, wantonly, or recklessly on the part of said employé."

(10) "The court charges the jury that it was the duty of Mr Kite, when he approached the railroad at Knuckles' crossing, for the purpose of crossing said railroad, to stop, look, and listen at a point sufficiently near said railroad, where he had or could have had a full view of the track, to ascertain whether or not an engine or train of cars was approaching said crossing, and if he failed to do so, and such failure resulted in or proximately contributed to his death, then the plaintiff cannot recover on the first and second counts of the complaint."

(11) "If the jury believe the evidence in this case, then the court charges you as a matter of law that Mr. Kite was guilty of contributory negligence at the time he was killed."

(16) "If the jury believe from the evidence that Mr. Kite did not stop, look, and listen before he attempted to cross the railroad track, then this would be contributory negligence on his part."

(12) "If the jury believe the evidence in this case, then the court charges the jury that Kite was guilty of contributory negligence at the time he was killed. Unless the jury believe from the evidence that the employés of the defendant wantonly, recklessly, or intentionally ran the engine against Mr. Kite, they must find a verdict in favor of the defendant."

(13) "Unless the jury believe from the evidence that the killing of Mr. Kite was occasioned solely by the negligence or improper conduct of the defendant, then the plaintiff cannot recover on the first and second counts of the complaint."

(14) "The plaintiff cannot recover damages in this case under the first and second counts of the complaint, unless the jury believe from the evidence that the killing of Mr. Kite was occasioned solely by the negligence or improper conduct of the defendant."

(15) "If the jury believe the evidence in this case, they cannot find for the plaintiff, unless the evidence reasonably satisfies them that the killing of Kite was intentionally, wantonly, or recklessly done by the employés of the defendant; and unless the jury are reasonably satisfied from the evidence, that the killing was done willfully, intentionally, wantonly, or recklessly by the employés of the defendant, they must find a verdict in favor of the defendant."

(17) "If the jury believe from the evidence that Mr. Kite did not stop, look, and listen before he attempted to cross the railroad track, then you should not find against the defendant on the first and second counts of the complaint."

(18) "Unless the jury believe from the evidence that the employés of the defendant, after they had discovered the perilous and dangerous position of Mr. Kite, intentionally, wantonly, or recklessly ran said engine against him and killed him, then you should not find for the plaintiff on the third count of the complaint."

(19) "The court charges the jury that if, at the time Mr. Kite was approaching Knuckles' crossing [duplicate of 23]."

(20) "If the jury believe from the evidence that on the afternoon when Mr. Kite was killed he was drunk, or very much under the influence of liquor, and that while in that condition and by his own fault or wrong he...