Grauer v. Alabama Great Southern R. Co.

CourtSupreme Court of Alabama
Citation96 So. 915,209 Ala. 568
Docket Number2 Div. 790.
PartiesGRAUER v. ALABAMA GREAT SOUTHERN R. CO.
Decision Date07 June 1923

Appeal from Circuit Court, Greene County; S. F. Hobbs, Judge.

Action by L. M. Grauer, as administrator of the estate of Hylton Grauer, deceased, against the Alabama Great Southern Railroad Company, for damages for wrongful death of intestate. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Plaintiff's intestate was killed, while walking on defendant's track by a local freight train, which was backing a short distance to a spur track.

The complaint is in five counts, the first four declaring on simple and subsequent negligence, and the fifth on wanton and wrongful injury. The trial judge charged out the first four counts, and the case went to the jury on the fifth or wanton count.

The town of Epes includes within its corporate limits the station and all the tracks and right of way of defendant railroad company from the station to the Tombigbee river, about half a mile to the northeast. After crossing the river going south, a side track branches out from the main line on the right, and extends beyond the station, from which point both tracks are visible to the river bridge. The tracks are parallel, and their inner rails are about 8 feet apart.

On this occasion the local freight train going south arrived at the station; the engine stopping at the passenger depot, and the train being on the side track. The train, according to the testimony of the conductor, consisted of the engine, eleven cars, and the caboose; but the station agent testified that he thought there were 7 or 8 cars, which averaged 36 feet in length.

While this train was standing still, the intestate, a young man, 21 years of age, came up and spoke to the station agent and the members of the train crew who were standing in front of the passenger depot near the engine. The agent, Hylton, testified that intestate said he was going to dinner at Mrs Horton's, who lived near the railroad, on the south side, and near to the river; that he then walked off in that direction on the main track and proceeded about 150 yards, when he met a through freight train coming south, and stepped off the main track and got on the side track in the rear of the local freight, which was then standing still; that intestate then walked about 100 yards before he was struck and killed; that witness did not see the train strike deceased, and did not know it until later; that the train backed up the side track in a minute or two after deceased got on that track; and that, when deceased moved over to the side track "he was in the line of vision" of the train crew standing near the engine, with nothing between them.

Mrs. La Grone, a witness for plaintiff, testified that she saw the train strike deceased; that deceased was walking with his back to the train, and the train was moving slowly, about like a man would walk; and that, so far as she knew or could see, the train crew had no knowledge of the accident until she called to them and informed them.

The evidence tended to show that just before the accident the through freight was passing by deceased, over the main track, at a speed of 10 or 15 miles an hour, and making a great noise. Members of the train crew testified that the backing train was moving at a speed of 3 or 4 miles an hour. Miss Ritchie, a witness for plaintiff, who was on the track just after the through train passed and saw the accident but a short distance away, testified that the backing train was moving pretty fast, and about as fast as the through train was moving.

The testimony of the train crew showed without dispute that, when the train began backing, and while it was backing, the engineer and fireman were in the engine cab; one brakeman was on the tank; another-one Manderson-was about midway of the train on top of a car; and no one was on the caboose. Manderson was facing and walking in the direction the train was running. He did not testify in the case, but the engineer and the other brakeman testified that they did not see the deceased on or near the track, and did not know of his presence.

The questions presented on pleadings, evidence, and instructions, are sufficiently stated in the opinion.

Harsh, Harsh & Harsh, of Birmingham, and Harwood, McKinley, McQueen & Aldridge, of Eutaw, for appellant.

Smith, Wilkinson & Smith, of Birmingham, for appellee.

SOMERVILLE J.

We have examined the testimony in the record with studious care, and our conclusion, in accord with the ruling of the trial court, is that there was nothing from which the jury could rationally find that any member of the train crew operating the train that killed the intestate had knowledge at any time that he was on the track in front of the backing train, and in peril from its movement; from which it results that the jury were properly instructed that they could not find for the plaintiff on the subsequent negligence count. It is conceded that the first three counts for simple original negligence were not supported by the evidence, and the only questions for review are those which relate to the issues arising under the fifth count, for wanton injury.

Under the wanton injury count, the only theory on which the evidence could support a recovery was that the people of Epes and of the neighboring territory habitually used the railroad track in question, for longitudinal passage, in such numbers and with such frequency-that fact being known to defendant's servants who were operating this freight train-as that the trainmen were charged with notice that some one would probably be on the track in an exposed situation, and would probably be injured by the operation of an engine, or train, or the running of cars, on the track, unless reasonable precautions were taken to prevent such a result, and a failure to take such precautions.

This theory of liability is well settled in this state, and has been applied in a great many cases. So. Ry. Co. v. Stewart, 179 Ala. 304, 60 So. 927, and cases therein cited; North. Ala. Ry. Co. v. Guttery, 189 Ala. 604, 66 So. 580; L. & N. R. R. Co. v. Heidtmueller, 206 Ala. 29, 89 So. 191; B. R. L. & P. Co. v. Saxon, 179 Ala. 136, 154, 59 So. 584.

When the required conditions are shown to have existed, it is, of course, a question for the jury whether the circumstances of the particular case establish the charge of wanton injury.

The facts which are pertinent for consideration are the density of the neighboring population; the general custom of using the track as a passageway; the number of people who use it; and the frequency and notoriety of such use. It is, however, not permissible to show that on special occasions, or at hours other than about the hour at which the injury occurred, great or unusual numbers of people have used, or habitually use, the track for special purposes. L. & N. R. R. Co. v. Heidtmueller, 206 Ala. 29, 89 So. 191, 193.

The evidence in this case was, we think, sufficient to bring the locus of the injury complained of within the purview of the rule of liability above stated; and it was therefore within the province of the jury to find that a duty rested on the defendant company to observe some appropriate precaution or precautions in the operation of its trains at the point of injury, in order to avoid it; the omission of one or all of which might stamp the conduct of the responsible trainman as wanton negligence, and the proximately resulting injury as wanton injury.

The precautions which the circumstances may thus require-the factors which may, in the jury's estimation, render the trainmen's mode of operating the train a just foundation for the conclusion of wanton injury-are the running of the train at such a speed as to permit of its effective control in case some one is discovered on the track in dangerous proximity, and to permit the endangered person to escape when warned of his danger; the giving of warning signals of approach; and the keeping of a lookout for observation, and seasonable warning, or checking or stopping the train. The omission of all of these measures in a given case might very well indicate a wanton disregard of human life; while, on the other hand, observance of a single one of them might, notwithstanding its inadequacy, satisfactorily rebut that conclusion.

So,...

To continue reading

Request your trial
28 cases
  • Walker v. St. Louis-San Francisco Ry. Co.
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...... ST. LOUIS-SAN FRANCISCO RY. CO. 6 Div. 412 Supreme Court of Alabama April 8, 1926 . . Rehearing. Denied May 6, 1926. . . ... so rendered will be sustained. Southern Ry. Co. v. Arnold, 162 Ala. 570, 575, 578, 50 So. 293; Supreme. Lodge, ...It is. said with great ingenuity and ability that the master can. only be derivatively liable; ... Cent.R. Co. v. Martin, 213 Ala. 617, 105 So. 805;. Grauer, Adm'r, v. A.G.S.R. Co., 209 Ala. 568, 96. So. 915; A.G.S.R. Co. v. ......
  • Kelly v. Hanwick
    • United States
    • Supreme Court of Alabama
    • January 25, 1934
    ......336 KELLY v. HANWICK. 1 Div. 778. Supreme Court of Alabama January 25, 1934 . . Rehearing. Denied March 22, 1934. . ... v. Wilson-'and according to the great weight of authority. in this country the owner is not liable on evidence ...v. Fonville, 218 Ala. 566, 576, 119 So. 610; Birmingham. Southern R. Co. v. Harrison, 203 Ala. 284, 82 So. 534;. Thomas v. Carter, 218 ... refused. Grauer v. Alabama Great Southern R. Co., . 209 Ala. 568, 96 So. 915. . . ......
  • Austin v. Tennessee Biscuit Co.
    • United States
    • Supreme Court of Alabama
    • March 29, 1951
    ...court did not err to a reversal in giving such charges, although they might be said to be misleading. In Grauer v. Alabama Great Southern R. Co., 209 Ala. 568, 573, 96 So. 915, 919, it was said: 'Another group of charges (V and HH) instructed the jury that wanton injury, as here charged, is......
  • Boyette v. Bradley
    • United States
    • Supreme Court of Alabama
    • May 29, 1924
    ......370 BOYETTE v. BRADLEY ET AL. 6 Div. 989. Supreme Court of Alabama May 29, 1924 . . Appeal. from Circuit Court, Jefferson ... thereon. Appellant insists that Allen v. Birmingham. Southern R. Co., 210 Ala. 41, 97 So. 93, 95, Grauer. v. A. G. S. R. R. Co., 209 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT