Leak v. Georgia Pac. Ry. Co.

• Decision Date: 26 May 1890
• Citation: 8 So. 245,90 Ala. 161
• Parties: LEAK v. GEORGIA PAC. RY. CO.
• Court: Alabama Supreme Court

8 So. 245

90 Ala. 161

LEAK v. GEORGIA PAC. RY. CO.

Supreme Court of Alabama

May 26, 1890

Appeal from circuit court, Calhoun county; LEROY F. BOX, Judge.

Action by James D. Leak, as administrator of Charles Hawkins deceased, to recover damages for the alleged negligent killing of said Hawkins by an engine belonging to and operated by defendant, the Georgia Pacific Railway Company. Upon the testimony as shown in the opinion defendant asked the court in writing to charge the jury that, "if the jury believed the evidence, they would find for the defendant." The court gave this charge, and the plaintiff duly excepted. The plaintiff requested many charges, which, under the opinion, it is unnecessary to set out at length. Each of plaintiff's charges were refused and he duly excepted to each refusal by the court. There was verdict and judgment for defendant, and plaintiff appeals.

Brothers, Willett & Willett, for appellant.

Knox & Bowie, for appellee.

STONE. C.J.

The testimony most favorable to the plaintiff in this case shows that his intestate attempted to cross defendant's railroad track when there was an approaching train in very dangerous proximity to him, that he looked neither up nor down the track, and that if he had looked he could not have failed to see the approaching train, and thus have escaped the injury which caused his death. This, under our decisions was negligence in him as matter of law, and not simply evidence of negligence to be passed on by the jury. Railroad Co. v. Thompson, 62 Ala. 494; Gothard v. Railroad Co., 67 Ala. 114; Railroad Co. v Crawford, ante, 243. In the case last cited we considered this question very fully, and need not reproduce the authorities cited in support of it. So, in the same case, we defined the meaning, import, and extent of the adjectives "reckless" and "wanton," which, under our rulings, so intensify negligence as to make it actionable, notwithstanding plaintiff may have been guilty of negligence which contributed proximately to the injury complained of. We said that, "to have this effect, the negligence must be so pronounced, betray such indifference to injuries likely to ensue, as to be the legal and moral equivalent of intentional wrong." This is the only grade of negligence which precludes the defense of contributory negligence. "Less than this," we said, "would in many conceivable cases secure to the complaining party a right of recovery, notwithstanding his own contributory negligence may have been as gross and reckless as that of defendant." The defendant's failure, if it did fail, to sound its whistle or ring its bell, was not such reckless negligence as would overcome the plea of contributory...