Louisville & N.R. Co. v. Phillips, 6 Div. 843

CourtSupreme Court of Alabama
Writing for the CourtANDERSON, C.J.
Citation80 So. 790,202 Ala. 502
PartiesLOUISVILLE & N.R. CO. et al. v. PHILLIPS.
Docket Number6 Div. 843
Decision Date19 December 1918

80 So. 790

202 Ala. 502

LOUISVILLE & N.R. CO. et al.
v.
PHILLIPS.

6 Div. 843

Supreme Court of Alabama

December 19, 1918


Rehearing Denied Feb. 13, 1919

Appeal from Circuit Court, Cullman County; Robert C. Brickell, Judge.

Action by J.W. Phillips against the Louisville & Nashville Railroad Company and John Cobb, the engineer in charge of the train, for damages for the death of plaintiff's minor son. There was judgment for plaintiff in the sum of $15,000, and defendants appeal. Affirmed.

A.A. Griffith, of Cullman, Eyster & Eyster, of Albany, and George W. Jones and E. Perry Thomas, both of Montgomery, for appellants.

F.E. St. John, of Cullman, for appellee.

ANDERSON, C.J.

The fourth count of the complaint charged subsequent negligence on the part of the engineer for failing to give signals or alarms after discovering the peril of the intestate, and that said failure was the proximate cause of his death. It was not, therefore, necessary to negative the fact that intestate was a trespasser, and the count was not subject to this or any other ground of the defendant's demurrer.

The trial court erred in sustaining the plaintiff's motion to exclude a certain portion of the defendant's answer to the interrogatories filed under the statute. Sullivan Timber Co. v. L. & N.R.R. Co., 163 Ala. 125, 50 So. 941. This ruling, however, was innocuous, as the only counts upon which it could have had any bearing were eliminated. This evidence related to efforts to stop the train, and the only count submitted to the jury was predicated solely upon a failure to signal the intestate, and not a failure to stop or slacken the speed of the train.

It was a question for the jury as to whether or not the intestate was in a perilous position when the engineer discovered him upon the track, whether or not the engineer did or did not discover that he was unaware of his peril, whether or not he blew the whistle or sounded an alarm, and whether or not a failure to do so was the proximate cause of the intestate's death. The engineer admitted discovering the intestate and his companions on the track when within 200 feet of them, while rounding the curve in the rear end of the cut, and claimed that he blew the whistle; but there was a conflict as to whether or not the whistle was blown, as several witnesses who were present testified that they heard no whistle, and it was for the jury to determine whether or not it was blown, and whether or not a failure...

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16 practice notes
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...v. Alger-Sullivan Lbr. Co., 204 Ala. 92, 85 So. 278; L. & N. v. Cross, 205 Ala. 626, 629, 88 So. 908; L. & N. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co. v. Setzer, supra; T. C. I. R. Co. v. Herndon, 100 Ala......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...Lumber Co., 204 Ala. 92, 85 So. 278; L. & N. R. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; L. & N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Hull v. Wimberly & T......
  • Gulf States Steel Co. v. Justice, 6 Div. 944
    • United States
    • Supreme Court of Alabama
    • October 21, 1920
    ...The fact that a suit was brought by the parent under section 2485 of the Code for punitive damages (L. & N.R.R. Co. v. Phillips, 202 Ala. 502, 80 So. 790, 791; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 403, 67 So. 604) for causing the death of a minor child, by the wrongful act of the ......
  • Airheart v. Green, 8 Div. 904
    • United States
    • Alabama Supreme Court
    • May 29, 1958
    ...Co. v. Fritz, 200 Ala. 692, 77 So. 235; City of Mobile v. Reeves, 249 Ala. 488, 31 So.2d 688; Louisville & N. R. Co. v. Phillips, 202 Ala. 502, 80 So. It is the conclusion of the court that the jury was justly authorized to find the highest degree of culpability. The amount of the judgm......
  • Request a trial to view additional results
16 cases
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...v. Alger-Sullivan Lbr. Co., 204 Ala. 92, 85 So. 278; L. & N. v. Cross, 205 Ala. 626, 629, 88 So. 908; L. & N. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co. v. Setzer, supra; T. C. I. R. Co. v. Herndon, 100 Ala......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...Lumber Co., 204 Ala. 92, 85 So. 278; L. & N. R. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; L. & N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Hull v. Wimberly & T......
  • Gulf States Steel Co. v. Justice, 6 Div. 944
    • United States
    • Supreme Court of Alabama
    • October 21, 1920
    ...The fact that a suit was brought by the parent under section 2485 of the Code for punitive damages (L. & N.R.R. Co. v. Phillips, 202 Ala. 502, 80 So. 790, 791; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 403, 67 So. 604) for causing the death of a minor child, by the wrongful act of the ......
  • Airheart v. Green, 8 Div. 904
    • United States
    • Alabama Supreme Court
    • May 29, 1958
    ...Co. v. Fritz, 200 Ala. 692, 77 So. 235; City of Mobile v. Reeves, 249 Ala. 488, 31 So.2d 688; Louisville & N. R. Co. v. Phillips, 202 Ala. 502, 80 So. It is the conclusion of the court that the jury was justly authorized to find the highest degree of culpability. The amount of the judgm......
  • Request a trial to view additional results

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