Louisville & N.R. Co. v. Phillips

• Decision Date: 19 December 1918
• Docket Number: 6 Div. 843
• Parties: LOUISVILLE & N.R. CO. et al. v. PHILLIPS.
• Court: Alabama Supreme Court

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 to blow the same was negligence proximately causing the intestate's death. L. & N.R.R. Co. v. York, 128 Ala. 305, 30 So. 676. It was also for the jury to determine whether or not the plaintiff's witnesses could have heard the whistle, had it been blown. There was no error in refusing the general affirmative charge requested by the defendant.

The defendant moved for a new trial upon several grounds, but, as we understand appellant's brief, the grounds insisted upon here are, first, the verdict was contrary to the weight of the evidence as to blowing the whistle; and, second, that the damage awarded is excessive. True, the trainmen testified positively to the blowing of the whistle, and the plaintiff's evidence is what is termed negative; but the jury saw and heard the witnesses, got the location and surroundings of the plaintiff's witnesses, and had data from which they could infer that they would have heard the whistle, had it been properly blown, and we are not prepared to say that the conclusion reached upon...