Haley v. Kansas City, M. & B.R. Co.

• Decision Date: 12 January 1897
• Citation: 21 So. 357,113 Ala. 640
• Parties: HALEY v. KANSAS CITY, M. & B. R. CO.
• Court: Alabama Supreme Court

21 So. 357

113 Ala. 640

HALEY v. KANSAS CITY, M. & B. R. CO.

Supreme Court of Alabama

January 12, 1897

Appeal from circuit court, Lamar county; S. H. Sprott, Judge.

Action by O. F. Haley, as administrator of the estate of S. F Pennington, against the Kansas City, Memphis & Birmingham Railroad Company. From a judgment for defendant on the pleadings, plaintiff appeals. Reversed.

On November 15, 1895, one S. F. Pennington, while walking along a path or footway, running parallel to and about five feet from the track of the Kansas City, Memphis & Birmingham Railroad Company, about three miles from Sulligent, In Lamar county, was struck by a plank, which projected from the side of a car of one of the railroad company's passing trains and was killed. His administrator, O. F. Haley, brings the present action against the Kansas City, Memphis & Birmingham Railroad Company to recover damages for the alleged wrongful injury and death of said Pennington. The complaint as originally filed contained eight counts. Demurrers were sustained to the first, second, third, fourth, fifth, sixth and eighth counts, and the seventh count was withdrawn. After sustaining the demurrers, the second and sixth counts of the complaint were amended, and the complaint was further amended by the addition of two other counts, numbered 9 and 10. These counts were as follows:

"Second. And plaintiff claims the other and further sum of twenty-five thousand dollars of defendant; and for cause of complaint says that heretofore, to wit, on the 15th day of November, A. D. 1895, at to wit, in the county aforesaid, the defendant, a corporation, was engaged in running and operating a railroad which passed along and through the county aforesaid, on and upon which defendant ran cars and trains of cars propelled by steam. And plaintiff says that at and along the place where the injury hereinafter complained of was inflicted, a path or footway ran by the side of the track of said railroad, and of sufficient distance therefrom to be safe and beyond danger to persons walking or passing over said path or way, and that said path or way was commonly used by persons traveling on foot, as was well known to defendant, upon which path a great number of pedestrians daily passed and repassed, all of which defendant, its agents and employés, well knew; that on, to wit the day aforesaid, at, to wit, about three miles from and northwest of Sulligent in said county, the defendant, while propelling on and along said railroad a train of cars, knowingly and intentionally had, on one of the cars so being propelled, a plank or piece of timber so placed that it would and did project over and beyond the side of said car a great distance, to wit, about five feet, and over and across the path or footway aforesaid, so that on the day aforesaid S. F. Pennington, while traveling on and upon said path or footway, and beyond any danger from a car or train of cars properly loaded and conducted was, by the plank or timber so negligently placed as aforesaid, struck and killed. And plaintiff says that the killing of said S. F. Pennington was due to the knowingly and intentionally running of said car by the defendant, its agents and employés, while there extended over and beyond the side thereof, and over and across the footway aforesaid, the plank or timber aforesaid."

"Sixth. Plaintiff demands of defendant the other and further sum of twenty-five thousand dollars, and for cause of complaint says: That heretofore, to wit, on the 15th day of November 1895, the defendant was engaged in running and operating a railroad in and through the county aforesaid, over and along which they ran cars and trains of cars propelled by steam. That at a point about three miles northwest of Sulligent, in said county, a footway or path ran parallel to and about five feet from the track of defendant's road, which footway or path was, as the defendant well knew, commonly used and traveled over and along by persons on foot, so that many persons passed and repassed thereon daily, as was well known to defendant its agents and employés. That on the day aforesaid the defendant, its servants and employés in utter disregard to the safety of such persons so passing along said path as aforesaid, knowingly and willfully propelled a train of cars on defendant's road having a plank needlessly placed on one of its cars so being propelled as aforesaid, so as to extend over and beyond the side of the car a great distance, to wit, a sufficient distance to extend over and upon the pathway aforesaid. And plaintiff says that one S. F. Pennington, who was then and there passing on foot along and upon said path or footway, was by the plank so extending over and beyond the car so being propelled as aforesaid, struck and killed. And plaintiff says, that the death of S. F. Pennington was due to the willful and knowingly propelling said train of cars on the track of defendant's road at and by the place aforesaid, while having the plank or timber aforesaid projecting over and beyond the side of said train as aforesaid."

"Ninth. Plaintiff demands of the defendant the other and further sum of twenty-five thousand dollars, and for cause of complaint says: That heretofore, to wit, on the 15th day of November, A. D. 1895, the said defendant was a corporation engaged in running and operating a railroad which passed through the county aforesaid, on and upon which defendant ran cars and trains of cars propelled by steam. And plaintiff says, that on the day aforesaid, said defendant, its servants and employés, were engaged in operating a train of cars for the purpose of repairing said road, and hauling material therefor on and upon said road between a point near Sulligent, in said county, and points a few miles therefrom. That at the point where the injury hereinafter complained of was inflicted, a path or footway ran along and by the side of the track of said railroad at a sufficient distance therefrom to be safe and beyond danger to persons walking along and over said path or footway. That at and along the place aforesaid, said path or footway was commonly used by pedestrians, so that many persons were daily and constantly passing and repassing thereon. Plaintiff further says, that the defendant, its servants and employés in charge of the train aforesaid, well knowing that on and along said path or footway many persons were accustomed to pass and repass as aforesaid, in utter disregard of, and indifference to, the safety of the persons whom they well knew were frequently passing along said path as aforesaid, on the day aforesaid, at, to wit, a point about three miles northwest of Sulligent, in said county, did knowingly, willfully, and in utter disregard to the safety of the persons aforesaid, propel on and along the track of defendant's railroad the train of cars aforesaid, on one of which cars the said defendant, its servants and employés, had knowingly and willfully placed a wooden plank about one inch thick in such manner that said plank projected over and beyond the side of the car aforesaid, a great distance, to wit, above five feet, and over and upon and across the path aforesaid. And plaintiff says, that on the day aforesaid, S. F. Pennington, while traveling along the path aforesaid, and about five feet from the track of said railroad, and a sufficient distance therefrom to be entirely safe from trains and cars loaded in a usual and proper manner, was at the point aforesaid, struck by the plank projecting from and beyond the car as aforesaid and killed. And plaintiff says, that the killing of said S. F. Pennington was due to the fact that defendant, its servants and employés, knowing the danger to persons so using said path as...