Lacey v. Louisville & N.R. Co.

• Decision Date: 19 March 1907
• Docket Number: 1,611.
• Parties: LACEY v. LOUISVILLE & N.R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

152 F. 134

LACEY v. LOUISVILLE & N.R. CO.

No. 1,611.

United States Court of Appeals, Fifth Circuit.

March 19, 1907

The plaintiff in error, and plaintiff below, brought her action in the circuit court of Conecuh county, Ala., against the Louisville & Nashville Railroad Company for the homicide of her husband on a public crossing over the track of the defendant railroad at Sparta, in Conecuh county, Ala. On motion of defendant the cause was removed to the Circuit Court of the United States for the Southern District of Alabama.

The facts connected with the occurrence resulting in the death of plaintiff's intestate and her husband were as follows The railroad tracks at the point in question run nearly north and south, and the public crossing nearly east and west. The post office, depot, and the depot platform were on the east side of the crossing, and deceased lived on the west side of the railroad track about 40 or 50 yards from the public road. On the 21st of April, 1905, at about 2 o'clock in the afternoon, the deceased started over the crossing on his way to the post office. A slag train had been standing for some time on the side track north of the crossing. As deceased started across he was followed by his two daughters, who were some few feet behind him. Just at that time a freight train was coming up approaching the crossing from the south, and apparently very near the crossing. The deceased crossed swiftly in front of it and approached the side track, which was some eight or nine feet from the main line on which the freight train came from the south. As deceased stepped upon the side track he was struck by some cars detached from the slag train, consisting of a caboose and one or two slag cars which were being 'kicked' over the crossing. Deceased was struck, knocked down, dragged for some distance, and killed.

All the evidence seems to show that the deceased did not see the approaching loose cars before they struck him. So far as the evidence shows, there was no one upon the detached cars which were being 'kicked' over the crossing to control their movements, or to give warning of their approach, and the evidence in the record all tends to show that no warning of any kind was given. The evidence shows that the day on which this homicide occurred was strawberry shipping day at Sparta, and that quite a number of people were there on that business; in some parts of the evidence it is said from 25 to 30, and some other witnesses put the number at from 25 to 50. The evidence also shows that the crossing was used that day to an unusual extent. The train on which the strawberries were to be shipped was due to arrive at Sparta about 3 o'clock in the afternoon, a short time after the homicide occurred.

There was an amendment to plaintiff's declaration which alleged that the defendant's agents and servants 'wantonly ran one of said cars against plaintiff's intestate and thereby caused his death. ' The defendant pleaded contributory negligence in several forms, some of the pleas being upon the ground that the deceased was standing on the track at the crossing at the time he was stricken. There was a demurrer to the plea of contributory negligence on the ground that it was no answer to paragraph C of the amended declaration, which charged wantonness, and the demurrer was sustained. The case went to the jury, and upon the conclusion of plaintiff's evidence, embodying substantially what has been briefly stated above, the court directed a verdict in favor of the defendant, and this action of the court is assigned as error.

D. M Powell, Edward M. Robinson, and John W. McAlpine, for plaintiff in error.

Gregory L. Smith and Harry T. Smith, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and NEWMAN, District judge.

NEWMAN District Judge, after stating the facts, , as follows:

We think that this cause should have been submitted to the jury. We are not sure, under all the facts and circumstances connected with the case as brought out by the plaintiff's evidence, that it should not have gone to the jury upon the question of negligence and contributory negligence, without reference to a further view of it, which is thought to be controlling. The learned judge who tried this case in the Circuit Court had sustained a demurrer to the pleas of contributory negligence in so far as these pleas operated against paragraph C of the amended declaration, which charged that the act of the defendant's servants and agents in kicking the cars over a public crossing without any one to control their movements or to give warning of their approach was wanton. The effect of this was to hold that contributory negligence-- that is, ordinary negligence-- was no bar to wanton or willful misconduct. We agree with this view of the law, and we think it also required the submission of the case to the jury upon the question as to whether the acts of defendant's employes, in sending these cars over the crossing in the way they did, was wanton and willful, in that it was done in total disregard of the safety of persons using the...