Kendrick v. Birmingham Southern Ry. Co., 6 Div. 781
| Decision Date | 19 October 1950 |
| Docket Number | 6 Div. 781 |
| Citation | 48 So.2d 320,254 Ala. 313 |
| Parties | KENDRICK v. BIRMINGHAM SOUTHERN R. CO. |
| Court | Alabama Supreme Court |
Lipscomb & Brobston, of Bessemer, and D. G. Ewing, of Birmingham, for appellant.
Benners, Burr, Stokely & McKamy, of Birmingham, and Ross, Ross & Ross, of Bessemer, for appellee.
Count A of the complaint is as follows: 'Plaintiff claims of the defendant the sum of Fifteen Thousand Dollars ($15,000.00) as damages, for that, heretofore, on to-wit the 5th day of December, 1943, the defendant was engaged in the operation of a railroad system and the running of locomotive engines and trains of cars on, or upon, the railroad tracks of the defendant in Jefferson County, Alabama, and on to-wit: said date the plaintiff's intestate, Carl L. Kendrick, deceased, was on or upon the railroad tracks of the defendant, in Jefferson County, Alabama, and at a place thereon about one quarter of a mile in a Northeasterly direction from where said railroad tracks crosses the Old Tuscaloosa Highway; and the plaintiff alleges that at said time and place a locomotive engine or train of cars, controlled or operated by the defendant was caused to collide with and kill plaintiff's said intestate, Carl L. Kendrick, deceased; and plaintiff alleges that said collision was so caused and plaintiff's intestate was so killed at said time and place as the proximate consequence of the negligence of the defendant, in that, the defendant negligently caused said locomotive engine or train of cars to collide with plaintiff's said intestate, Carl L. Kendrick, deceased, at the time and place aforesaid.'
The following charges were given at defendant's request:
'6. I charge you, Gentlemen of the jury, if you are reasonably satisfied from the evidence, that intestate was upon the railroad track, that it was not incumbent upon the defendant's agent or servant in charge of the operation of the locomotive or engine on the occasion complained of to know of the presence of the plaintiff's intestate upon the track, or to keep a lookout for him.
'7. I charge you, Gentlemen of the jury, that if you are reasonably satisfied from the evidence that the intestate was upon the railroad track at the place his body was subsequently found, then I charge you that, at such place, there was no duty upon the defendant's agent or servant in charge of the locomotive or train, to keep, or maintain, a lookout for intestate at such place.
'8. I charge you, Gentlemen of the jury, that if you are reasonably satisfied from the evidence that the plaintiff's intestate was struck by one of the defendant's trains at or about the place where the intestate's body was found, then the Court charges you that said plaintiff's intestate was, at the time and occasion, a trespasser.
'9. I charge you, Gentlemen of the jury, that the engineer in charge of the locomotive or engine, owed the plaintiff's intestate no duty to keep a lookout for him on the occasion complained of, if you are reasonably satisfied from the evidence that the intestate was killed where his body was discovered.
'12. I charge you, Gentlemen of the jury, that there can be no recovery in this case on the speculation of the defendant being guilty of subsequent negligence, unless there was actual knowledge of peril of the intestate and if, from the evidence, you are reasonably satisfied that the defendant's agents, in charge of the locomotive or engine, did not have actual knowledge of the peril of the plaintiff's intestate there can be no recovery in this case.'
'14. I charge you, Gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case, that neither the defendant nor its agents, servants or employees had actual knowledge of the intestate's peril, then I charge you that there can be no recovery in this case on the theory of subsequent negligence.
'15. I charge you, Gentlemen of the jury, that actual knowledge of the peril of the intestate cannot be imputed to the defendant's agents or servants in charge of the operation of the locomotive or engine upon fact or circumstance which rests purely in conjecture or speculation.
'16. I charge you, Gentlemen of the jury, that the burden of proof is on the plaintiff in this case, to prove to the reasonable satisfaction of the Jury, that intestate was in a position of peril, and that such said intestate was discovered by the defendant's agents or servants in charge of the operation of the locomotive or engine in a position of peril within time to have avoided contact of the intestate by the employment of preventative means at hand, and that the defendant's agents or servants in charge of the operation of the locomotive or engine failed to employ such means, and as a proximate result thereof the said intestate was struck by the engine on the occasion complained of.
'17. I charge you, Gentlemen of the jury, that the railroad track itself is a warning of danger, imposing on persons about to cross it a duty to look and listen for arriving trains.
'21. I charge you, Gentlemen of the jury, if you are reasonably satisfied from the evidence, that the intestate was prone upon the track of the defendant, then I charge you that the intestate was a trespasser on the track, and I further charge you that if you find that the intestate was prone upon the tracks, that the said defendant's employees and the engineer in charge of the train owed the intestate no duty to keep a lookout for him, under such facts and circumstances.
'25. I charge you, Gentlemen of the jury, if you are reasonably satisfied from the evidence, that the defendant's engineer discovered the deceased upon the tracks of the railroad company in front of the train which he was operating, and if you are reasonably satisfied from the evidence that at the time said engineer discovered the said deceased upon the tracks and in a perilous condition, that it was then too late for the said engineer by the use of all means at hand, known to skillful engineers, to prevent or avoid the train coming in contact with him, failed to do anything whatever, there could be no recovery against the defendant on the theory of subsequent negligence.
'26. I charge you, Gentlemen of the jury, that the law does not require of the railroad engineer the doing of the impossible, nor attempting to do the impossible, and from the evidence, if you are reasonably satisfied that the intestate was upon the railroad tracks and was seen thereon by the engineer in a dangerous and perilous position, but at the time he was first seen upon the tracks in a dangerous or perilous position, that it was then too late for the engineer by the use and resort to all preventative means known to skillful engineers to have prevented the train from coming in contact with him, then I charge you that it would not be negligence on the part of the engineer if he failed to do anything.
'27. I charge you, Gentlemen of the jury, in order for the plaintiff to recover in this case, you, the Jury, must be reasonably satisfied from the evidence, that the defendant's agent or servant or servants in charge of the locomotive on the occasion complained of, had actual knowledge of the intestate being upon the tracks of the railroad or in dangerous proximity thereto, and I further charge you that such knowledge cannot be imputed to the defendant's said agent because of circumstances from which the Jury might conjecturally infer that the defendant's said agents had actual knowledge.'
This is the second appeal in this case. For opinion on former appeal see Birmingham Southern R. Co. v. Kendrick, 247 Ala. 573, 25 So.2d 419.
The suit is under the provisions of § 123, Title 7, Code 1940, the homicide statute. It was originally filed by Adella Kendrick, as administratrix of the estate of Carl L. Kendrick, deceased, against the Birmingham Southern Railroad Company. There was verdict and judgment for the plaintiff. On appeal by the defendant railroad company, we held that the defendant was entitled to the general affirmative charge and because of the trial court's refusal to give such charge, the judgment was reversed and the cause was remanded.
After remandment, the death of Adella Kendrick being suggested, the cause was revived in the name of B. B. Kendrick, administrator de bonis non of the estate of his deceased brother, Carl L. Kendrick.
There were no additional...
To continue reading
Request your trial
-
Louisville & N.R. Co. v. Johns
...was to exercise reasonable care to avoid injuring him after his peril was discovered.' Appellant relies on Kendrick v. Birmingham Southern R. Co., 254 Ala. 313, 48 So.2d 320, to support his argument that refusal of Charge 6 was error, and asserts that Charges 12 and 14 given in the Kendrick......
-
Nettles v. State
...in a cause involving the interest of the employer and is, therefore, subject to challenge for cause." Kendrick v. Birmingham Southern R. Co., 254 Ala. 313, 322, 48 So.2d 320 (1950); Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561, 577-78, 62 So. 199 (1913). Here, the School Board was......
-
Hutchins v. DCH Regional Medical Center
...of J.B. and K.B. because those two jurors were employees of the defendant DCH. The plaintiff cites Kendrick v. Birmingham Southern Railroad Co., 254 Ala. 313, 48 So.2d 320 (1950), for the proposition that a juror's employment by one of the parties is grounds for a challenge for cause. In th......
-
Birmingham Elec. Co. v. Carver
...in what respect it was negligent. Louisville and Nashville R. R. Co. v. Sunday, 254 Ala. 299, 48 So.2d 216; Kendrick v. Birmingham Southern Ry. Co. 254 Ala. 313, 48 So.2d 320. The charge we are dealing with is not limited to original contributory negligence but any negligence of plaintiff w......