Kansas City, M. & B.R. Co. v. Wagand
| Decision Date | 28 June 1902 |
| Parties | KANSAS CITY, M. & B. R. CO. v. WAGAND. |
| Court | Alabama Supreme Court |
Appeal from city court of Birmingham; Chas. A. Senn, Judge.
Action by C. H. Wagand against the Kansas City, Memphis & Birmingham Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.
In the first count of the complaint, the plaintiff sued to recover in an action of case for the negligence of the defendant or its employés, and the negligence, as alleged therein, was as follows: "Plaintiff avers that at the time aforesaid the defendant was filling in a trestle at or near Coal Creek, in Jefferson county, Alabama, and on the line of said railroad and while he was engaged in said work, the defendant, by its servants and employés, did carelessly and negligently run one of its trains upon and against a mule owned by plaintiff, and did thereby bruise, maim, and injure said mule, to plaintiff's damages, as aforesaid." The other counts of the complaint and the circumstances of the accident are sufficiently stated in the opinion. It was shown that the train which was attached to the engine that caused the accident was a freight train; that at the time the train was coming around a curve, which was 500 or 600 feet away from the place of the accident, and it was running at the rate of 20 miles an hour, and was heavily loaded; that from said curve to the place of the accident was a down grade. The engineer who was in charge of the engine testified, as a witness for the defendant, that he saw the plaintiff and his team on the track as soon as he came around the curve; that he did all things in his power, and everything that could be done by skillful engineers, to prevent the accident; that it was not possible, at the speed the train was going, to stop it, after the mule was seen, before the train reached the place of the accident. The other facts of the case are sufficiently stated in the opinion. The defendant requested the court, among others, to give to the jury the following written charges, and separately excepted to the court's refusal to give each of the said charges as asked: "(1) If you believe from the evidence that the engineer in charge of the train was guilty of no negligence, your verdict cannot be for the plaintiff under the first count of the complaint." There were verdict and judgment for the plaintiff, assessing his damages at $125. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.
Walker Tillman, Campbell & Porter, for appellant.
Being employed by defendant's...
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