Empire Coal Co. v. Martin

• Citation: 67 So. 435,190 Ala. 169
• Decision Date: 07 November 1914
• Docket Number: 749
• Parties: EMPIRE COAL CO. v. MARTIN.
• Court: Supreme Court of Alabama

67 So. 435

190 Ala. 169

EMPIRE COAL CO. v. MARTIN.

No. 749

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by Nathaniel C. Martin, as administrator of the estate of Fred Martin, for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Bankhead & Bankhead, of Jasper, for appellant.

James J. Ray and L.D. Gray, both of Jasper, for appellee.

ANDERSON C.J.

Count 9 is a wanton count and was not subject to the defendant's demurrer thereto, and, this being the case, the defendant's special pleas 2, 3, and 4, of contributory negligence, were no answer to same, and the trial court did not err in sustaining plaintiff's demurrers to said pleas. There was proof from which the jury could infer that the point at which the body of the intestate was found upon the defendant's track No. 1 was constantly and frequently used by the public at all times of the day, and especially late in the afternoon, about the time of the arrival of the train, and about the time of the accident in question, and that this user was of such frequency and duration that the servants of the defendant in charge and control of its train were conscious of such user and were conscious of the fact that to back, push, or drive a car upon the side track or main line anywhere between the tipple and washer, without signal or warning, would likely or probably result in injury to persons who would probably be on the track or tracks of the defendant. There was also proof that the coach or caboose was driven further down said track No. 1, suddenly and without signal or warning. There was also proof from which the jury could infer that the intestate was run over or against by the coach or caboose in question when being driven down said track No. 1. Of course, the intestate must have been upon the track and killed while on same in order to fasten a liability upon the defendant even under the wanton count, as it would not be liable if the deceased came by his death by falling or being thrown from the train or a car of the defendant, as the only wanton negligence inferable to the defendant's servants was in driving the coach down the track without signal or warning with a consciousness that some one would probably be upon said track and would probably be injured, as there is nothing to indicate that the action of said servants could or would probably result in injury to a person on one of defendant's cars at the time or who was not upon the track. The evidence is by no means clear or certain as to where the deceased was when killed, whether he was on the train and fell off, or whether he was on the track; yet there was an inference for the jury that he was on the track when struck by the car, and, if such was the case the jury could also infer that said servants of the defendant were guilty of wanton negligence. It may be true that the weight of the evidence showing that the track or tracks were frequently and constantly used by the public is confined to a point at or near the tipple, and all along between the tipple and the washer, and that side track No. 1, not extending to the washer, and the point on same where intestate was killed being some distance from the tipple, the user of the defendant's track did not extend to and include that point at side track No. 1 where the injury occurred; yet there was some evidence that all of said tracks, including side track No. 1, were constantly and frequently used.

It was therefore for the jury to determine whether or not the intestate was on the track when run over, or did not fall off of the train, and whether or not the defendant's servants were guilty of wanton negligence which proximately resulted in his death.

The general charge, however, should have been given for the defendant as to...