Appeal
from circuit court, Jefferson county; Leroy F. Box, Judge.
Action
by Matilda J. Swope against the Highland Avenue & Belt
Railroad Company. Judgment for plaintiff, and defendant
appeals. Reversed.
This
action was brought to recover damages for personal injuries
suffered by the plaintiff while a passenger on one of the
trains being operated by the Birmingham Railway & Electric
Company, with which train one of the trains of the defendant
company collided, from the result of which collision the
personal injuries were inflicted. The substance of the counts
of the complaint as to which the court did not give the
general affirmative charge for the defendants are
sufficiently stated in the opinion. To these counts the
defendant demurred upon the following ground: "(1) It is
not alleged in said count that the train on the
defendant's road was being operated by the defendant, or
by the defendant's agent or servants. (2) It is not
alleged in said count that the train on defendant's road
was being operated by defendant, or under its authority. (3)
That it is not averred that the track of defendant crossed
the track of any other railroad at the point where the
collision occurred. (4) It is not averred whom the track
belonged to which was being used by the train of the
Birmingham Railway & Electric Company. (5) The said count
shows no obligation or duty on the part of the defendant to
plaintiff, in the management of its train, which it violated.
(6) Said count shows no duty or obligation on the part of the
defendant to plaintiff, in the management of its train, which
it violated. (7) Said count does not allege any negligence
for which this defendant is chargeable. (8) By said count it
is attempted to allege the negligence in the alternative. (9)
That by said count defendant is not informed whether the
alleged negligence was in the management or running of the
train. (10) There are no facts alleged which show any
negligence for which defendant is chargeable. (11) It is not
averred that the whistle was not blown or the bell was not
rung at short intervals while running. (12) It is not shown
how or in what manner the failure to blow the whistle or ring
the bell was the direct or proximate cause of the injury
complained of, or contributed thereto. (13) It is not averred
that the defendant had any right or authority to authorize or
permit the train of the Birmingham Railway & Electric Company
to use or occupy the track upon which the train on which the
plaintiff was riding at the time of the alleged injuries then
was." To the eighth and eleventh counts the defendant
separately demurred upon the following grounds: "It is
not alleged or shown in said counts that the person or
persons in charge of the train on defendant's track
after discovering the peril of the train in which plaintiff
was riding, could, by the use of any efforts, have stopped
the train on defendant's track in time to prevent the
collision, or injury to plaintiff." To the sixth and
tenth counts the defendant separately demurred upon the
following grounds: "(1) That in and by said several
counts it is alleged in the alternative that the negligence
of the defendant's employés in failing to give signals
prevented the train from avoiding the collision, or prevented
the plaintiff from escaping the danger, and it is not averred
which result would have followed the giving of such
signals." Each of these separate demurrers was
overruled. The defendant then interposed several pleas. The
first was the plea of the general issue. In the second and
third pleas the defendant alleged that the train which caused
the injury complained of was operated without its knowledge
or consent, and was not operated by any of the servants or
agents of the defendant, or by its authority. The other pleas
were as follows: "(5) For further answer to the
complaint, defendant says that it was at the time of the
alleged injuries the owner of the track on which the car of
the Birmingham Railway & Electric Company on which plaintiff
was riding was moving, and defendant avers that the persons
in charge of the train which it is alleged caused said
injuries, but who were operating the same without the
knowledge or consent of this defendant, before they saw or
could have seen the said car, and before they knew or could
have known that a collision was probable, had used all the
means in their power to stop said train, and continued to
use the same after they discovered said car on the
track, but notwithstanding such efforts on their part
the said train could not be stopped in time to prevent the
collision, and after discovering said car on the track
there was not sufficient time in which to give any signals
which would have prevented the collision and injury. (6)
For further answer to the complaint, defendant says that it
was at the time of the alleged injury the owner of the track
on which the car of the Birmingham Railway & Electric Company
on which plaintiff was riding was moving; and defendant avers
that the persons in charge of said train which it is alleged
caused said injuries, before they saw or could have seen the
said car, and before they knew or could have known that a
collision was probable, had used all the means in their power
to stop said train, and continued the use of the same
after they discovered said car on the tract, but
notwithstanding such efforts on their part the said train
could not be stopped in time to prevent the collision
and after discovering said car on the track there was not
sufficient time in which to give signals which would have
prevented the collision and injury. (7) For further
answer to the complaint, defendant says that the train of
cars on defendant's railroad was equipped with brakes of
approved pattern, and other appliances for stopping and
checking the speed thereof; and the defendant avers that the
said brakes and appliances were on said day tested, and were
found sufficient to check the speed and stop said train, and
a few minutes before the happening of the alleged collision
said brakes had been successfully applied for stopping the
said train at the corner of Twenty-Second street and Avenue
E, a point about five hundred yards from the point of
collision; that as the train was crossing the bridge on
Twenty-Second street, and before the engineer in charge of
the engine, or the fireman, saw or could have seen the train
on which plaintiff was riding, the engineer applied the
brakes for the purpose of checking the speed of the train as
it approached First avenue, and then discovered that there
was some defect therein, and they would not work, and the
engineer then reversed the engine and applied steam, and used
all efforts to check the speed of the train, and
continued to use such efforts after he discovered the car on
the track; but notwithstanding such efforts the engineer
was unable to stop said train, and it moved or slided on the
rails down to the point where the train on which plaintiff
was riding was, and which was on the track of defendant, and
collided therewith, without fault on the part of this
defendant, its agents or servants; and, after discovering
the car on the track, there was not sufficient time in which
to have given signals which would have prevented the
collision and injury. (8) For further answer to the
complaint, defendant says that it was at the time of the
alleged injuries the owner of the track on which the car of
the Birmingham Railway & Electric Company on which plaintiff
was riding was moving, and that the track on which the train
was moving, which it is alleged caused the injuries and
collision, crosses its other track on which the train was
moving on which plaintiff was riding on First avenue at
Twenty-Second street; and defendant avers that it had the
right of priority in the use of both of said tracks over the
train of the Birmingham Railway & Electric Company, and that
the agents and servants of the Birmingham Railway & Electric
Company were required to keep out of the way of
defendant's trains; and defendant avers that the said
point where the said collision occurred was not a crossing of
the tracks of the two railroads, but was a crossing of one
track of defendant's over another, and the use of the
track of defendant by the Birmingham Railway & Electric
Company was subordinate and subject to the use of the same by
the defendant; and defendant avers that the persons who were
operating the train on its track, before they saw or could
have seen the car on which plaintiff was riding, and before
they knew or could have known that a collision was probable
had used all the means in their power to stop the train on
defendant's tracks, and continued to use the same
after they discovered the car on the track, but
notwithstanding such efforts on their part the said train
could not be stopped in time to prevent the collision and
injury. (9) For further answer to the complaint
defendant says that the train of cars on defendant's
railroad which collided with the train on which plaintiff was
riding was approaching First avenue across the bridge on
Twenty-Second street in such a manner and at such a rate of
speed that it could, under ordinary circumstances, and with
the appliances with which it was equipped, be stopped before
reaching the track upon which the train on which the
plaintiff was riding then was; and defendant avers that the
said appliances had been, a short time before said collision
tested, and found to be in perfect condition, but that when
said train was about to leave said Twenty-Second street
bridge the engineer on said train put in operation said
appliances in ample time, under ordinary circumstances, to
stop said train before reaching...
