Jolley v. Southern Ry. Co.

• Decision Date: 15 June 1916
• Docket Number: 6 Div. 212
• Parties: JOLLEY v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

72 So. 382

197 Ala. 60

JOLLEY v. SOUTHERN RY. CO.

6 Div. 212

Supreme Court of Alabama

June 15, 1916

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by H. Jolley, administrator, against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Finch &amp Pennington, of Jasper, and Burgin, Jenkins & Brown, of Birmingham, for appellant.

Bankhead & Bankhead, of Jasper, for appellee.

SAYRE J.

Plaintiff's decedent was killed at a place where a path or trail crossed defendant's track. People in the neighborhood, including school children, had been accustomed to use this path as a short cut in lieu of the public road which was near at hand. The specific requirements of the statute (section 5473 of the Code), which makes it the duty of the engineer of a railroad train to blow the whistle or ring the bell before reaching any public road crossing, had no operation at that point. Walker v. Ala. T. & N. Ry., 70 So. 125. The only question of possible conception in the case, on the facts to be stated, was whether the engineer, after discovering the peril of plaintiff's decedent, was guilty of negligence or wanton wrong in omitting to do something he might have effectually done to prevent the accident. As to this issue or these issues, the burden of proof rested on the plaintiff throughout the case. L. & N.R.R. Co. v. Jones, 191 Ala. 484, 67 So. 691; L. & N.R.R. Co. v. Rayburn, 68 So. 356; Empire Coal Co. v. Martin, 190 Ala. 169, 67 So. 435; Carlisle v. A.G.S. Ry., 166 Ala. 591, 52 So. 341. On this law, and on the facts to be stated presently, the trial court held that plaintiff had not made out a case requiring submission to the jury, and correctly so.

There was a trestle close at hand, and some days before the accident defendant had laid alongside its track two piles of timbers, to be used in repairing the trestle. These piles sloped back from the track, like steps, to a height of four or five feet. The work was in progress at the time, and defendant's freight train, consisting of about 20 cars after stopping on the other side of the trestle, passed slowly over the trestle before reaching the piles of timbers its speed being estimated by witnesses at five to ten miles an hour. Plaintiff's decedent, a boy between 8 and 9 years of age, and his male companions had crossed the track and were unquestionably aware of the approach of the train. Plaintiff's theory of the case seems to be that the timbers were laid so near the track as unnecessarily to constrict the path between them and the track, that his decedent was in that part of the path between the timbers and the track, and that his presence there should have induced some method of operating the train different from that adopted. If the engine had struck deceased, there might have been color for plaintiff's contention. But the undisputed testimony showed that the boy fell under the train after then engine and several cars, 4 or 5, had safely passed over him. The preponderance of the evidence offered by plaintiff went to show that deceased was sitting on one of the piles immediately before he went down under the train, and in this and other evidence offered by plaintiff--defendant offered none--there was very reasonable ground for the inference that deceased lost his life in an effort to swing onto the side...