Central Railroad & Banking Co. v. Vaughan

• Decision Date: 18 June 1891
• Court: Alabama Supreme Court
• Parties: CENTRAL RAILROAD & BANKING CO. OF GEORGIA v. VAUGHAN.

9 So. 468

93 Ala. 209

CENTRAL RAILROAD & BANKING CO. OF GEORGIA v. VAUGHAN.

Supreme Court of Alabama

June 18, 1891

Appeal from circuit court, Barbour county; J. M. CARMICHAEL, Judge.

This action was brought by the appellee, Sarah A. Vaughan, against the appellant railroad corporation, and sought to recover damages for the alleged negligence of the defendant through its employes, resulting in the killing of her intestate. Issue was joined on the plea of the general issue, and on the plea of contributory negligence of plaintiff's intestate. The testimony tended to show that on the day of the accident the deceased was walking upon the track of the defendant, and when on a trestle he was overtaken by the defendant's train, run over and killed; that when he was first discovered by the engineer, who was running the engine drawing the said train, the engine had just emerged from a cut, rounding a curve, coming down a grade which was 70 feet to the mile, and when the engineer saw him he "blew down the brakes;" that the deceased, on seeing the approaching train was somewhere about the middle of the trestle, turned and started in the opposite direction; and that then defendant's engineer reversed his engine, blew the cattle alarm, sanded the track, and used every means known to a skillful engineer to avert the accident. There was much evidence introduced to show the distance the engine was from the deceased when he was first discovered by the engineer and there were exceptions reserved to the introduction of this evidence; but the rulings of the court in this behalf are not assigned as error, except as to the testimony of one Florence, which is sufficiently set out in the opinion. There were other assignments of error which go to the refusal of the court to give the general affirmative charge in behalf of the defendant, and to which refusal the defendant duly excepted. There was judgment for the plaintiff, and the defendant brings this appeal.

Roquemore, White & McKenzie, for appellant.

Jackson E. Long, for appellee.

MCCLELLAN J.

Plaintiff's intestate was confessedly guilty of negligence, which contributed proximately to his death, in being at the time of the fatal collision on the trestle supporting defendant's track. He was a trespasser to whom the defendant owed no duty, except the exercise of reasonable care and diligence after he was discovered on the track, or after his peril became apparent to its employes, to avoid injuring him. Tanner v. Railroad Co., 60 Ala. 621; Railroad Co. v. Donovan, 84 Ala. 141, 4 South. Rep. 142; Railroad Co. v. Womack, 84 Ala. 149, 4 South. Rep 618; Railway Co. v. Blanton, 84 Ala. 154, 4 South Rep. 621; Bentley v. Railroad Co., 86 Ala. 484, 6 South. Rep. 37; Railroad Co. v. Black, 89 Ala. 313, 8 South. Rep. 246 To entitle plaintiff to recover notwithstanding her intestate's contributory negligence, it must have been made to appear that defendant's employes, after discovering his peril, failed to exercise due care and diligence to avert the injury. Such failure, with such knowledge of the situation and probable consequences of the omission of preventive effort when such effort might have been effectual to avoid the accident, is gross negligence, so-called recklessness or wantonness, implying a willingness to inflict the injury, which is the legal equivalent of willfulness or intentional wrong-doing, against the results of which the mere negligence of the person injured is no defense. Authorities, supra; Carrington v. Railroad Co., 88 Ala. 472, 6 South. Rep. 910; Railway Co. v. Lee, (Ala.) 9 South. Rep. 230, and...