Louisville & N.R. Co. v. Calvert

• Decision Date: 14 June 1910
• Citation: 170 Ala. 565,54 So. 184
• Parties: LOUISVILLE & N. R. CO. v. CALVERT.
• Court: Alabama Supreme Court

54 So. 184

170 Ala. 565

LOUISVILLE & N. R. CO. v. CALVERT.

Supreme Court of Alabama

June 14, 1910

Rehearing Denied Jan. 12, 1911.

Appeal from Circuit Court, Blount County; John W. Inzer, Judge.

Action by Alba Anna Calvert against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Count 2 is as follows: "Plaintiff claims of defendant $30,000 as damages, to wit: That heretofore, to wit, on the 8th day of September, 1908, the defendant was engaged in the following business in the state of Alabama, namely, the operation of a railroad and running thereon its engines, trains, and cars for the transportation of freight and passengers for hire. That on, to wit, the 8th day of September, 1908, the plaintiff was lawfully crossing said railroad at the following place, namely, a public road crossing at or near Reed's Gap, in Blount county, Alabama, and was in a place of danger upon or near said tracks; and the defendant's agents or servants, were engaged in running or operating the engine of defendant, to which was attached a train of cars over and along said railroad, and over and upon said crossing. And plaintiff avers that her danger upon or near said railroad track was apparent to the servants or agents of defendant in charge or control of said engine or train; but notwithstanding the said apparent danger, the servants or agents of defendant in charge or control of said engine or train negligently permitted the same to run upon or against the plaintiff at said public road crossing, as a proximate consequence of which he suffered the wounds and injuries set out in the first count of this complaint. And plaintiff avers that her said wounds and injuries were the proximate consequence of and caused by reason of the negligence of the defendant, its servants or agents, as aforesaid."

Plea 3 is as follows: "For further plea, in answer to complaint, defendant says that plaintiff herself was guilty of negligence which proximately contributed to her own injury in this: That plaintiff, when at or near said crossing, saw said train approaching, and measured the time and distance it would take to cross said track, and, acting thereon negligently attempted to cross in front of said train, and was injured."

The oral charge of the court, referred to, is as follows "Willful, wanton, or intentional negligence is where one consciously fails, that is charged with a duty, to exercise due care and diligence to prevent possible injury to the person of another, on the discovery of the peril of another, or under such circumstances where he is chargeable with knowledge of such peril, and being conscious of the inevitable and probable results of such failure, and that injury will probably result to such other persons thereby."

The following charge was given for the plaintiff: "(1) Gentlemen of the jury, the court charges you that contributory negligence is defensive matter. The defendant in this case will file special pleas setting up this defense to the first count of the complaint, which charges simple negligence in general terms. The burden of proof is on the defendant to establish its special pleas to your reasonable satisfaction by the evidence in the case. The evidence tends to show that the plaintiff, a woman, on or about the time mentioned in the complaint, was approaching defendant's track for the purpose of crossing the same, at a public road crossing in said county, in a buggy drawn by a horse driven by plaintiff's father. The alleged negligence of plaintiff's father, if you find from the evidence that he was negligent as the court has defined that term, is not imputable to the plaintiff in this case, unless you are reasonably satisfied from the evidence that the plaintiff's father was acting as her agent in driving said vehicle at the time, thereby making his acts, in view of the law, her own, or unless you are reasonably satisfied from the evidence that the plaintiff was at the time in a position to exercise authority or control over her father, the driver, or unless you are reasonably satisfied from the evidence that plaintiff and her father were at the time engaged in a joint enterprise, or in carrying out a common purpose, neither one having exclusive control over the vehicle in which they were riding."

There was judgment for the plaintiff in the sum of $7,500.

Ward & Weaver, for appellant.

Gaston & Pettus, for appellee.

SIMPSON J.

This action is by the appellee for damages resulting from personal injury received by plaintiff's being struck by an engine of defendant's at a public road crossing.

The second count of the complaint was not subject to the cause of demurrer, "that it does not allege facts showing plaintiff's place at or upon said track to be dangerous." As will be seen by the count set out in the statement by the reporter, it alleges that plaintiff was lawfully crossing said railroad at a public road crossing "and was in a place of danger upon or near said track." "This averment shows that defendant was under a duty to keep a lookout for her at the time and place of the collision, and to exercise care in conservation of her safety,"...