Herring v. Louisville & N.R. Co.

• Decision Date: 15 May 1919
• Docket Number: 8 Div. 25
• Citation: 203 Ala. 136,82 So. 166
• Parties: HERRING v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

82 So. 166

203 Ala. 136

HERRING v. LOUISVILLE & N.R. CO.

8 Div. 25

Supreme Court of Alabama

May 15, 1919

Appeal from Circuit Court, Morgan County; Robert Brickell, Judge.

Action by Bennie Herring, by his next friend, against the Louisville & Nashville Railroad Company for damages for injuries in a crossing accident. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The cause went to the jury on two counts, the first being for subsequent negligence, and the second for wanton negligence. The pleas were contributory negligence in that the plaintiff went upon the track in full view and near an approaching train and in close and dangerous proximity to him, and that he did this voluntarily, and carelessly remained on the track until struck by the train when he had time to remove himself from the on-coming train; also that he failed to stop, look and listen. The other facts sufficiently appear on the former appeal. 195 Ala. 422. The following charges were refused to the plaintiff:

(3) In order for the jury to return their verdict in favor of the plaintiff, it is not necessary that the jury should be reasonably satisfied by a preponderance of the evidence that the enginemen of the defendant discovered plaintiff in a position of peril in front of their train in time to have avoided injuring him by the use of all the means at their command.

(4) In order for the jury to return their verdict for the plaintiff, it is not necessary that the jury should be satisfied that the enginemen saw the plaintiff on the ties in front of the engine.

(5) Contributory negligence, in order to avail the defendant must not only be a want of ordinary care, but there must further be a proximate connection between this want of ordinary care and the injuries.

(6) Although the jury may find from the evidence that plaintiff was guilty of contributory negligence as alleged in defendant's pleas, and further find that plaintiff has established the allegation of count 2 of the complaint, your verdict must be for plaintiff.

(7) No contributory negligence of the plaintiff can afford the defendant any defense to the action.

(8) If the jury are reasonably satisfied from the evidence in this case that defendant's servant or agent, while acting within the line and scope of their employment, wantonly willfully, or intentionally refrained from using some of the means at their command to avoid injuring plaintiff, with the knowledge that such failure on their part would probably result in injury to the plaintiff and with reckless disregard of the consequence, and said injury was proximately caused by said failure, then the jury may have, in addition to such damages as will compensate the plaintiff for the loss of his leg, such other and further damages as will punish the defendant for such conduct on the part of its servant and act as a deterrence to others from being guilty of such conduct in the future.

(9) If the jury are reasonably satisfied from the evidence that the defendant's servant or agent consciously failed after becoming aware of the peril of the plaintiff, to do all in their power with the means at hand to avoid injuring the plaintiff, and the plaintiff's injury was the proximate cause of such failure, then the servants or agents of the defendant would be guilty of wantonness, and the jury will find for the plaintiff, even though the jury should believe that the plaintiff was himself guilty of contributory negligence which helped to bring about his injuries.

W.A. Denson, of Birmingham, for appellant.

Eyster & Eyster, of Albany, for appellee.

MAYFIELD J.

This is the second appeal in this case. See report of...