Gaynor v. Louisville & N.R. Co.

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, C.J.
• Citation: 136 Ala. 244,33 So. 808
• Decision Date: 28 February 1903
• Parties: GAYNOR v. LOUISVILLE & N. R. CO.

33 So. 808

136 Ala. 244

GAYNOR
v.
LOUISVILLE & N. R. CO.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Mobile County; Wm. S. Anderson, Judge.

Action by Agnes Nellie Gaynor, administratrix of James T. Gaynor, deceased, against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

James T. Gaynor was run over and killed by one of the cars on the Louisville & Nashville Railroad Company at a crossing of a public street in the city of Mobile. This suit was brought by his administratrix to recover damages. The complaint as originally filed contained eight counts. The sixth, seventh, and eighth counts were stricken from the file on motion of the plaintiff. The first and third counts of the complaint alleged that the killing was caused "by and through the carelessness, wantonness, and improper conduct of said defendant, or its servants or agents," in operating a train at the time and place of the killing. The fourth and fifth counts alleged that the plaintiff's intestate was killed while crossing or attempting to cross the defendant's track. "The defendant then and there, by its servants or agents, so wantonly conducted itself in and about the use, management, and operation of said steam engine and train of cars as to wantonly run one of said cars with great violence upon said plaintiff's intestate," and thereby crushed him, so that in consequence of said injuries he died. To each of the counts of the complaint the defendant pleaded the general issue, and by special pleas set up the contributory negligence of the plaintiff's intestate, in that he failed to look or listen before going upon the defendant's track, and that, if he had so looked or listened, he could have seen the approaching train and thereby escaped injury; and that such negligence on the plaintiff's intestate's part proximately contributed to the injuries complained of. To each of the pleas setting up contributory negligence the plaintiff demurred, upon the ground that said pleas neither traversed nor confessed and avoided the substantial allegations of the counts of the complaint, and that said pleas did not show any contributory negligence on the part of the plaintiff's intestate which proximately contributed to the injury complained of, and that the failure of the plaintiff's intestate as set up in said pleas was not shown to have been negligence on his part which contributed to his death. To said special pleas setting up contributory negligence, in so far as they were pleaded to the fourth and fifth counts, the plaintiff demurred, upon the grounds that said counts alleged that the plaintiff's death was caused by the wanton negligence of the defendant's servants or agents, and that said pleas did not set up the defense of negligence complained of. The court overruled the demurrers to the pleas in so far as they were pleaded to the first, second, and third counts of the complaint, and sustained the demurrers to said pleas so far as they were pleaded to the fourth and fifth counts. The cause was tried upon issue joined upon the plea of the general issue to all the counts of the complaint, and upon issue joined upon the pleas of contributory negligence as pleaded to the first, second, and third counts of the complaint.

The undisputed evidence showed that the deceased was killed at a crossing of a public street in the city of Mobile where people were constantly crossing, and that this fact was known to the employés of the defendant in charge of the car that ran over the deceased. There was some dispute as to exactly how the deceased came to be upon the track at the place where he was stricken, and also as to his exact position on or near the track, but in other respects the evidence was without conflict. The deceased was killed upon a curve of a track whose general direction was southeast and northwest, but, for convenience in describing it, it will be treated as running east and west, and will be so spoken of.

Just prior to the time that the deceased entered upon the track, the defendant's switch engine, drawing two freight cars, had gone west to a point about 90 feet west of where the accident occurred. The switchman stood at a switch stand on the south side of the track until the engine and cars passed it, and then threw the switch, and crossed in front of the east end of the cars to the north side of the track. The engine backed the cars eastwardly at the rate of three or four miles an hour, and the switchman ran along the north side of the car that was furthest east, keeping within about 10 feet of the east end of the front car. Another switchman stood about 200 feet northeast of the backing cars, watching the track ahead of the cars, and could see the entire track between the point where he stood and the end of the car, while the switchman that ran along with the car could see the center of the track in front of the car...