Louisville & N.R. Co. v. Heidtmueller

• Decision Date: 13 January 1921
• Docket Number: 6 Div. 953
• Citation: 206 Ala. 29,89 So. 191
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. HEIDTMUELLER.

89 So. 191

206 Ala. 29

LOUISVILLE & N.R. CO. v. HEIDTMUELLER.

6 Div. 953

Supreme Court of Alabama

January 13, 1921

Rehearing Denied May 6, 1921

Appeal from Circuit Court, Cullman County; O. Kyle, Judge.

Action by Eddie Heidtmueller, as administrator of the estate of Theodore Heidtmueller, against the Louisville & Nashville Railroad Company, for damages for the death of his intestate. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Brown J., dissenting.

Eyster & Eyster, of Albany, and A.A. Griffith, of Cullman, for appellant.

W.A Denson, of Birmingham, and Paine Denson, of Cullman, for appellee.

ANDERSON C.J.

It is the well-established law in this state that trainmen will be guilty of wantonness for running their trains at a great rate of speed without lookout, signal or warning at points densely populated, and where people constantly, frequently, and with regularity pass on or over the track, notwithstanding those who pass on or along same may be trespassers, and this rule applies to rural communities, as well as cities, towns, or villages. Whitehead v. St. Louis R.R. Co., 179 Ala. 314, 60 So. 930; Haley v. K.C.R.R. Co., 113 Ala. 640, 21 So. 357. Nor do we think that this rule is opposed by the case of South. R.R. Co. v. Stewart, 179 Ala. 304, 60 So. 927, notwithstanding the expression that the use must not only be frequent, and by a large number of people, "and must coexist with the proximity of a populous city or village," which said quoted expression was not decisive of the case, and it is not altogether accurate. Density, however, of the population alone will not suffice, as there must also be a use of the roadbed by the public in such large numbers and with such frequency and regularity that the trainmen will be held to a knowledge of the probable consequences for the non-compliance with the aforesaid precautions. Highland Ave. R.R. v. Robbins, 124 Ala. 113, 27 So. 422, 82 Am.St.Rep. 153.

While the evidence in this case shows that the settlement attingent to the point where the child was killed is perhaps a little more populous than the community dealt with in the Whitehead Case, supra, and that those who resided there used the defendant's track in going to and returning from Vinemont and other points, it does not show that the same was used by such numbers and with such frequency and regularity as to render it a place where the trainmen would be charged with a consciousness that the nonobservance of the cautionary measures above mentioned would probably produce death or injury. Some of the questions propounded to some of the witnesses would render an affirmative answer some proof of this fact if said general affirmative answer stood alone, as the questions were so framed as to make it a generally used thoroughfare at the time this child was run over; and some of the witnesses answered affirmatively, but later on demonstrated that they did not know the exact hour when the train passed this particular point, or that, in testifying to the use of the track at or near this time, they had reference to the use of the same by the children in returning from school.

Indeed, the plaintiff seems to have appreciated the fact that the general or ordinary use by the public at this point did not afford a basis for wantonness on the part of the enginemen, except, perhaps, at or during certain hours of the day. In other words, it was proven that from 20 to 27 children used the track at this point as a passageway in going to and returning from school, which was about a mile north. There was a double track at this point, and some of the evidence shows that they walked between the two tracks, while some shows that they went between the rails of the track over which train No. 2 ran on the day in question. The evidence shows that school opened at 8:30 a.m., and closed at 4 p.m. Therefore, we may concede that there was such a use of the track for a certain period of the day just before 8:30 a.m. and just after 4 p.m. as to charge an engineer, familiar with conditions at this point at that time, with the probable consequences of not observing cautionary measures when passing; yet there is not a particle of evidence that shows, or from which the jury could have reasonably inferred, that this engineer, Jessie, knew or could have reasonably apprehended that children would be at this point at the time his train No. 2 passed on the day that the child was killed.

The evidence shows that school turned out at 4 p.m. and, as it would naturally take the children some time to reach this point, they could not have gotten there until some minutes after 4. True, some of the evidence shows that some of the younger ones got out earlier, but just how many, or when they reached the point in question, the evidence does not disclose with any degree of accuracy or certainty. The schedule time of No. 2 was 2:20 o'clock, and the trial judge in the oral charge stated that the "undisputed" evidence showed that on the day the accident occurred it passed there at "3:14 o'clock in the afternoon." We think the great weight of the evidence convincingly shows that the train passed at 3:14, and not later, though there was one witness for the plaintiff who said it was as late as 3:40 or 3:45. Therefore, assuming that this train passed between 3:14 and 3:45, it was before school dispersed, and before the children were in the habit of reaching this point when returning to their respective homes, unless it may have been some of the smaller ones; but as to the number and the exact hour at which they usually arrived we are not informed. At any rate, there is no satisfactory proof that the point of the accident was frequented by school children between 3:14 and 3:45 in the afternoon; but, if the evidence did show this fact, there is nothing whatever to show that this engineer, Jessie, was ever along there at this particular hour on former runs, or had the slightest knowledge that the track was a passageway for children generally, and with frequency between 3:14 and 3:45 in the afternoon.

There was some evidence that several times prior to the accident train No. 2 was late, but just the exact time of its passage is not fixed, except one witness attempts to fix it at times when the school children were returning, and by general answer to counsel's question attempts to fix it corresponding with the time when the accident occurred. The extent to which the witness would go, however, as to when the train was late was, "it is near the time for the school children to come." This witness further stated, "I was not there, and did not know whether the school children were on the track or not; I have never seen them." There was also proof that train No. 2 had been seen to pass between 3 and 4 in the afternoon, but just when or how often the proof does not show.

On the other hand, the defendant's undisputed evidence shows that Jessie had been running on No. 2 for only about a month, and only once a week, going north; that is, each Monday. Therefore this engineer, Jessie, had never passed this point on No. 2 going north exceeding four times prior to the accident, and the proof does not show that on either of these trips he ever passed at the same hour in question, or when the children were or would probably be upon the track. The runs he made on trains just prior to going on No. 2 did not pass at such times when the children were using the track. Prior to this he ran on a freight train for about a year, due at Vinemont, going south, about daylight, and about 4:30 in the afternoon going north.

Therefore, conceding that he could and did see children returning from school on these north-bound trips at 4:30 in the afternoon, this not only failed to put him on notice that they would be at this point from 3:14 to 3:45, but, in effect, assured him that school did not close until later, and that they would not come along until after 4 o'clock. The evidence in this case utterly fails to charge this engineer with the knowledge of such dangerous conditions at the point in question as to render him guilty of the wanton death of this child upon this afternoon in question. The fact that he was conscious that persons would, at the time he passed, probably be upon or within dangerous proximity of the tracks is not borne out by the evidence or the reasonable inferences to be drawn therefrom, as distinguished from mere conjecture or speculation. We consequently hold that the trial court erred in not giving the affirmative charge as requested by the defendant, and the judgment of the circuit court is reversed and the cause is remanded.

While we treat this case upon the assumption that this child was killed by train No. 2, and while using its track as a walk or passageway, we do not wish to be understood to hold that the evidence is sufficient to reasonably establish the fact that the child was killed while using the track in the ordinary way, on which the plaintiff relies to establish such a general and customary use as to charge this defendant with wantonness on the part of its agents or servants. Southern R.R. Co. v. Stewart, supra, and cases therein cited.

The judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

All the Justices concur, except BROWN, J., who dissents.

THOMAS J. (concurring).

In addition to what the Chief Justice has written, I concur in the reversal of the cause for reasons set forth in my concurring opinion in Crim. Admrx., v. L. & N.R.R Co., 89 So. 376. In addition to the authorities there collected I wish to add the following: Northern Pac. Ry. Co. v. North Dakota, 250 U.S. 135, 39 Sup.Ct. 502, 63 L.Ed. 897; Hatcher v. Atchison, etc., Co. (D.C.) 258 F. 952; Bloch v. United States (C.C.A.) 261...