Glass v. Memphis & C.R. Co.

Decision Date10 November 1891
Citation94 Ala. 581,10 So. 215
PartiesGLASS v. MEMPHIS & C. R. CO. MEMPHIS & C. R. CO. v. GLASS.
CourtAlabama Supreme Court

Cross-appeals from city court of Decatur; W. H. SIMPSON, Judge. Affirmed.

Action by Samuel Glass, administrator, against the Memphis &amp Charleston Railroad Company for damages for killing plaintiff's intestate. Judgment for plaintiff for $460. Plaintiff and defendant both appeal.

This suit was brought by Samuel Glass, as administrator of his mother, Martha Glass, deceased, to recover $30,000 as damages for the alleged wrongful and negligent killing of the intestate by the defendant. Defendant pleaded the contributory negligence of the intestate, and plaintiff replied that defendant was guilty of gross, willful, wanton and reckless negligence. The proof showed that on the 18th day of March, 1889, plaintiff's intestate was returning to her son's house-boat on the river, from the business portion of the town; that she came to the corner of Ferry and Market streets, and from there went diagonally across an open lot, with only one or two small houses on it, by a footpath till she reached the railroad track; that she then walked down said track a distance of from 20 feet to 60 yards, and got on defendant's trestle across a large gully; and that she had walked about two-thirds of the way across this trestle when defendant's train, coming from behind knocked her off into the ditch below. The testimony also showed that the intestate could have gone home by Market street, and thereby have avoided walking on the track except at the street crossing; that the distance by this route was a little longer than the one adopted by the intestate, but had a bridge across the ditch, erected by the city for the use of vehicles and pedestrians. The evidence also showed that at that time a person crossing the open block going towards the trestle could see a train approaching the trestle for a hundred yards or more, and could hear it a greater distance that a person getting on the track at the point where it intersected the footpath could see a train approaching as far back as Canal street, which was the top of a "pretty steep" grade, and was distant from the trestle between 1,500 and 1,600 feet. None of the witnesses saw Mrs. Glass as she stepped from the footpath upon the track, though she was seen by some while approaching the track, by others on the track approaching the trestle, and by still others when on the trestle. All testified that she did not seem to be watching or listening for the train, and that she walked very slowly while on the trestle. The track was laid along what had been, before the war, Waterstreet; but this street had not been used since the war for vehicles, and, "so far as the city was concerned, was abandoned." Since the side track was built there in 1886 there was no place for pedestrians to walk except on the roadbed, and in crossing the trestle on foot one had to step from timber to timber. The train was being operated by an engineer, a fireman, and three brakemen; one of the latter-and foreman of the crew-being stationed at the rear end of the front coal-car; another on the third car from the front,-a box-car; and the third on the car next to the engine; this being the ordinary and general number and arrangement of the crew on a switch train. The whistle blew for Arrantz's mill,-1,170 feet from the trestle,-and the train stopped (or slowed up considerably) there, in order that the "draw," going down to the river, might be raised. Some of the witnesses state the train came to a stop, but all agree that it slowed up considerably. The length of the train was between 220 and 250 feet, and that of the trestle 75 or 80 feet. The train hands testified that, as soon as they observed Mrs. Glass on the track, (which was just as they passed Jervis' mill,) they gave the signal to the engineer to stop, and began to put on brakes; that the whistle was blown, the engine reversed, the brakes set, and the track sanded, and that they used every means in their power to stop the train. The witnesses, without contradiction, (except by a negro man, who was on a steam-boat, 400 or 500 yards up the river,) state that the whistle was blown repeatedly for the intestate to get off the track; and that the train hands motioned to her, and hallooed at her. Most of the witnesses testified that the whistle began to sound the cattle-alarm, and the train hands began to try to stop the train when the front car was about Jervis' mill, which was about 600 feet from the trestle; and that they continued so to do until plaintiff's intestate was knocked off. The train ran about the length of the train after the intestate was struck, the engine stopping directly over her.

On the examination of the witnesses for the plaintiff, the plaintiff sought to introduce evidence tending to show that it was the custom of people in the neighborhood of the accident to walk over the trestle, and that it was used as a passage-way. On examination of the plaintiff himself, he was asked: "Did you know your mother's habits with respect to railroad trains,-of carefulness or carelessness?" The defendant objected to this question as irrelevant. The court sustained the objection. The plaintiff also sought to introduce testimony to the effect that the south end of Well street over which the trestle where the accident occurred was built, was still used as a street. The court in its general charge instructed the jury, among other things, that "the railroad company must be presumed to be in the rightful possession of the street along which it was laid, and therefore was not a trespasser;" and also that "the deceased was at the time of the accident a trespasser on the defendant's track." The plaintiff duly excepted to these portions of the general charge. At the request of the defendant the court gave the following written charges to the jury: "(1) Even if the train could have been stopped before reaching the trestle, defendant would not be liable, on the evidence in the case, if the train employes, after discovering Mrs. Glass on the trestle, made an effort in good faith with the means at their command to stop the train, and to prevent injury to her. (2) Defendant did not owe to plaintiff's intestate, Martha Glass, the duty to discover her on the trestle in time to stop the train and prevent injury to her. If she could have seen the train coming by looking back when she went on the trestle or while she was thereon, and if the train employes in good faith tried to stop the train and prevent injury to Mrs. Glass after they discovered her danger, defendant would not be liable." "(4) The failure of defendant's employes in charge of the train to look out for obstructions on the track, and to discover Mrs. Glass on the trestle in time to stop the train before reaching her, if the jury find from the evidence that there was such failure, would not alone authorize the jury to find that defendant was guilty of wanton, reckless, or intentional negligence. (5) If the jury believe the evidence in this cause they would not be entitled to find for the plaintiff, unless they find from the evidence that the train employes, after they discovered Mrs. Glass on the trestle, and the danger she was in, failed to make an effort in good faith to stop the train and prevent the injury. (6) If the jury believe the evidence in this case, it establishes the fact that the plaintiff's intestate, Martha Glass, went upon the trestle over which defendant's track runs, and that when she went on the trestle, if she had looked back, she could have seen the train coming in time to get out of the way, and avoid injury, and the failure of the employes on defendant's train to discover Mrs. Glass in time to stop the train is not such evidence of wanton, intentional, or reckless injury as will authorize a recovery by plaintiff. (7) On the undisputed evidence in this case plaintiff's intestate was not lawfully on defendant's track at the place where she came to her death, and defendant owes her no duty except not to injure her wantonly, recklessly, or intentionally. (8) If the jury believe from the evidence that the plaintiff's intestate, Martha Glass, went upon the railroad track, and undertook to walk across the trestle, when defendant's train was approaching said trestle, and that when she went upon the trestle she could have seen the train coming if she had looked in the direction from which the train was coming, or could have heard it if she had stopped and listened, then she was guilty of contributory negligence if she went upon said trestle without so looking and listening, and the verdict of the jury must be for the defendant, unless they find from the evidence that the train employes, after they discovered that the plaintiff's intestate was on the trestle and in danger of being struck by the train, did not in good faith try to stop the train by the use of the appliances at their command. (9) If the jury believe from the evidence that the plaintiff's intestate went upon the trestle over which defendant's track ran, and that the train was then approaching said trestle, then it was the duty of said Martha Glass to use her senses of hearing and of sight to discover an approaching train in time to avoid danger, and, if she did not look and listen to discover said train, if it was then approaching said trestle, she was guilty of contributory negligence, and the plaintiff cannot recover unless the failure of defendant's agents or servants in charge of said train to stop the same after they discovered said Martha Glass on the trestle amounted to intentional indifference to stop the train and prevent injury to her." The plaintiff excepted to the court's refusal to give, among others, the...

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