Emmett v. Alabama Great Southern R. Co.

• Decision Date: 16 March 1933
• Docket Number: 7 Div. 166.
• Citation: 146 So. 811,226 Ala. 310
• Parties: EMMETT v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

146 So. 811

226 Ala. 310

EMMETT v. ALABAMA GREAT SOUTHERN R. CO.

7 Div. 166.

Supreme Court of Alabama

March 16, 1933

Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.

Action under homicide act by H. P. Emmett, as administrator of the estate of Lorenza Whitfield Earp, deceased, against the Alabama Great Southern Railway Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Haralson & Son, of Fort Payne, for appellant.

Goodhue & Lusk, of Gadsden, for appellee.

THOMAS Justice.

This suit was by the plaintiff as the administrator of the estate of Lorenzo Whitfield Earp, deceased, against the Alabama Great Southern Railroad Company, for the wrongful killing of plaintiff's intestate by the defendant.

The original complaint contained three counts: Count 1 charging that "The defendant by its servants, agents or employees, who were then and there acting within the line and scope of their employment, negligently ran an engine which was drawing a passenger train over, on, or against, the body of plaintiff's intestate and thereby caused his death" count 2, that "plaintiff's intestate was on or dangerously near the track of defendant's said railroad a few hundred yards north of where the north boundary line of the City of Fort Payne, as then located, crossed the railroad track of said defendant, and said intestate was then and there in a dangerous and perilous position in that he would be injured by an approaching train if it proceeded towards him, and the defendant's agents, servants or employees in charge of an engine on one of defendant's passenger trains going north knew of said dangerous position of plaintiff's said intestate and knowing thereof the said agents, servants or employees of the defendant in charge of said engine, negligently failed to use all the means at their command to stop the train and prevent the injury"; and count 3 charging that "the agents servants or employees of the defendant, who were operating a train of the defendant at said time on said railroad, while then and there acting within the line and scope of their employment, wantonly, wilfully or intentionally ran the engine of said train over, upon or against the body of plaintiff's intestate and killed him," etc. (Italics supplied.)

By amendment of the complaint, counts 4 and 5 were added, count 5 charging, among other necessary averments, that "the plaintiff's intestate was on or near the track of defendant's said railroad a few hundred yards north of where the north boundary line of the City of Fort Payne, as then located, crossed the railroad track of said defendant, and at a place and time where the said railroad track of the defendant was so frequently used by the public as a passway by pedestrians that someone was likely to be in a position of danger there, facts and circumstances known to those in charge of the approaching train of defendant, and that the defendant's agents, servants, or employees in charge of an engine pulling one of defendant's passenger trains going north at the time complained of, knowing of the said use at said time and place of said track as a passway for pedestrians, negligently failed to keep a lookout for persons situated as was this intestate at the time, and negligently ran said engine and train at a high rate and dangerous rate of speed, without giving an alarm of approaching danger, such as blowing the whistle or ringing the bell, on, over or against the body of plaintiff's intestate."

The plea was the general issue in short by consent, with leave to give in evidence any material facts that may be properly pleaded.

The two questions presented are, the giving of the affirmative charge at the request of defendant and the overruling of the motion of plaintiff for a new trial.

The defendant offered no testimony.

The rules as to the giving of affirmative instructions are well understood. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; Brown Funeral Homes & Ins. Co. v. Baughn (Ala. Sup.) - So. -; ^[1] Central of Georgia Rwy. Co. v. Bates (Ala. Sup.) 144 So. 9; Central of Georgia Rwy. Co. v. Corbitt, 218 Ala. 410, 118 So. 755; Central of Georgia Rwy. Co. v. Ellison, 199 Ala. 571, 75 So. 159; Alabama Great Southern Railroad Co. v. McWhorter, 156 Ala. 269, 47 So. 84.

The appellee's line ran through Fort Payne; the accident occurred about 300 yards north of the corporate line, and about 300 yards south of the public crossing known as that of Minnvale. There were double tracks, and the engine and train of cars were proceeding northward on one of these lines (which track is not stated) between 6:30 and 7 o'clock p. m., when the injury occurred. No witness saw decedent at the time of or immediately preceding his injury; no one testified as to the manner and circumstances of his injury, except as to the injured place about his head and shoulder. There was no evidence that the engineer or fireman saw decedent on or near the tracks in time to have avoided injuring him, or in time to have warned him, except the inference which may be drawn from the testimony of witness Owens to the effect that the "engine was blown" and brakes applied "about forty yards from where the train commenced whistling to where the body" was found; that "it whistled about three times. It did not stop before it struck him; the train ran on by the body and then stopped." The witness Owens further testified on this point: "I heard the noise from the train * * * the brakes or wheels must have been locked on the train because the fire was flying out of them just before it passed where the body was." (Italics supplied.)

There was no testimony as to whether there were headlights or as to the speed of the engine; there was no evidence of the position and duties of the engineer or fireman immediately before the point of discovery or contact in question. Snyder v. Mobile Light & Ry. Co., 214 Ala. 310, 107 So. 451. Thus the case was not brought within the rule of our cases. Central of Georgia Ry. Co. v. Bates (Ala. Sup.) 144 So. 9.

The rule as to negligence after the discovery of peril is that liability is predicated upon actual knowledge of peril and failure to take due and available preventive action. Central of Georgia Rwy. Co. v. Bates (Ala. Sup.) 144 So. 9, 10, and many authorities there cited. No evidence indicated failure of duty on the part of the employees in charge of the engine and cars from the...