Louisville & N.R. Co. v. Porter

• Decision Date: 03 February 1916
• Docket Number: 6 Div. 234
• Citation: 71 So. 334,196 Ala. 17
• Parties: LOUISVILLE & N.R. CO. v. PORTER.
• Court: Alabama Supreme Court

71 So. 334

196 Ala. 17

LOUISVILLE & N.R. CO. v. PORTER.

6 Div. 234

Supreme Court of Alabama

February 3, 1916

Rehearing Denied March 23, 1916

Appeal from Circuit Court, Blount County; J.E. Blackwood, Judge.

Action by John Porter, administrator, against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Ward &amp Weaver, of Oneonta, and M.L. Ward, of Birmingham, for appellant.

Erle Pettus, of Birmingham, for appellee.

SAYRE J.

Plaintiff (appellee) sued in two counts, charging: (1) That defendant's servants or agents wantonly or willfully ran or propelled a locomotive engine upon or against plaintiff's decedent, thereby killing him; and (2) that defendant's servants or agents negligently ran or propelled the engine upon or against plaintiff's decedent after his peril was discovered by one of them, thereby killing him. Defendant has appealed. We entertain the opinion that the result of the trial cannot be sustained.

Defendant has a station and two tracks, main line and siding or house track, at Blount Springs. The main line is located to the west, the house track between it and the depot. The depot is to the east of the tracks, which are straight and nearly level for a considerable distance north and south. The spaces between and around the tracks and rails are filled to a practical level with cinders, above which only the rails appear. A north-bound freight train had stopped on the house track some distance south of the depot, where its engine was detached and moved north beyond the depot to shove a cattle car onto a spur track and out of the way. Doing this, it passed a cattle pen where plaintiff's decedent was on some business. This cattle pen was about 200 feet north of the depot. Another freight train, moving south on the main line, had stopped at the water tank just across the tracks from the cattle pen. While the detached engine was in the neighborhood of the spur, the south-bound train moved to the south. Plaintiff's decedent got upon this train, several car lengths back from the engine, and rode down to a point nearly opposite the depot office, where he alighted between the tracks some 30 or 35 feet from the place where he was killed a few moments later. He moved obliquely over toward the office door; but, when he reached the middle of the house track, he turned and started walking along that track to the south. At that time the detached engine was about 60 feet away, moving back to its train. Deceased had gone only a little way along the track, 15 to 20 feet, when the detached engine struck him from behind and killed him. The weight of the evidence goes to show that the engine was moving about 5 or 6 miles an hour; the witness who testified to the highest rate of speed said it was moving 6 or 8 miles an hour. The evidence was in conflict as to whether any signals of approach were sounded as the engine backed.

In view of the fact, previously established and at no time denied that deceased was walking along the track and not across it all that evidence which was intended to show that people from the Mulberry neighborhood used a footpath over Duffy's Mountain and a footbridge across a little creek near the railroad by which they approached and crossed defendant's tracks from the west was irrelevant and calculated to work injury to the defense against the first count of the complaint. Deceased was not crossing the track according to the custom of the Mulberry folks, and notice of what he was doing was not to be brought home to the defendant's agent in charge of the locomotive by knowledge of the wholly different thing customarily done by them; and besides, at the time in question, the south-bound train was in the way, so that the Mulberry folks, approaching the railroad from the west, as plaintiff's decedent approached the house track, could not cross. Defendant's objection to plaintiff's question about the footpath that crossed the track and went over the...