Louisville & N. R. Co. v. Young

Citation53 So. 213,168 Ala. 551
PartiesLOUISVILLE & N. R. CO. v. YOUNG.
Decision Date19 May 1910
CourtSupreme Court of Alabama

Appeal from Circuit Court, Morgan County; D. W. Speake, Judge.

Action by Roberta Young, as administratrix of Joe Lawrence deceased, against the Louisville & Nashville Railroad Company for the death of deceased. From a judgment for plaintiff defendant appeals. Reversed and remanded.

For the statement of the facts, and for former report of this case see citations set forth in the opinion.

The question to the witness Bonham was as follows: "Suppose that the reservoir pressure of the air on a 40-ton switch engine, six-wheel connected engine, is 90 pounds to the square inch, and the train line pressure is 70 pounds to the square inch, and that the engine is proceeding south on a level or nearly level track, at the rate of 6 or 7 miles per hour, going backward, pushing backward a tender upon which there are 8 truck wheels, against each of which there is an air brake appliance, how long would it take this air under these conditions to stop that engine, if everything was in good working order?"

The following charges were given at the instance of the plaintiff:

"(3) If McDermott, the engineer, saw Lawrence, when the latter was in 3 or 4 feet of the moving tender, make a quick movement to get on the track in front of said tender, and if the engineer knew that the contact of the tender with Lawrence could not then have been prevented, it was the duty of the engineer to make every reasonable effort to stop the engine as quickly as practicable, whether he knew that Lawrence was under the engine, or on the footboard, or not, if in fact Lawrence was in either position; and if the engineer failed in his duty in this respect, and such failure was the proximate cause of the death of Lawrence, then your verdict must be for the plaintiff, notwithstanding Lawrence should not have gone on the tracks without looking." "(8) The mere passage of the footboard over Lawrence before the engine could have been stopped would be no defense, provided the death of Lawrence was caused by his head being caught under the brake beam; and if Lawrence became unable to save himself, and if McDermott knew that fact, if it was a fact, and after such knowledge McDermott negligently failed to stop the engine before Lawrence's head was thus caught, and if he could have stopped in time to have saved Lawrence, the verdict must be for the plaintiff.
"(9) If Lawrence got in a position of great peril, and if he became unable to save himself, and if McDermott knew these facts, if they were facts, and if, after such knowledge, he (McDermott) acted negligently as charged, and if by reason of such negligence the head of Lawrence became caught between the rail and the brake shoe, and if thereby the fatal injuries were inflicted after he was rolled and dragged, if he was rolled and dragged, the verdict must be for the plaintiff, provided Lawrence was not negligent after becoming so imperiled."

The following charges were refused to the defendant:

"(5) I charge you that the undisputed evidence in this case shows that said injuries which produced the death of Lawrence could not have resulted from said Lawrence being pushed or dragged, without compression or contact with a foreign substance. Therefore, if you believe such evidence, in connection with other evidence, your verdict should be for the defendant upon the counts in the complaint alleging the dragging or pushing of said Lawrence as a cause of the injuries which produced his death.
"(6) The plaintiff cannot recover in this case, unless Lawrence's danger under the tender was known to McDermott, and he then failed to adopt means known to him best adapted to stop the engine and avert injuries to Lawrence.
"(7) I charge you, gentlemen of the jury, that on the undisputed evidence in this case the plaintiff's intestate, Will Lawrence, was guilty of contributory negligence, and your verdict should be for the defendant, unless you believe from the evidence that the defendant's engineer, McDermott, knew that the said Lawrence was under the tender of the engine, and not mortally injured, and after such knowledge failed by the exercise of all proper means reasonably capable of adoption at the time to avert said injury."
"(11) I charge you that the undisputed evidence in this case shows that said injury, which produced the death of Lawrence, could not have resulted from said Lawrence being pushed or dragged. Therefore, if you believe said evidence, in connection with the other evidence, your verdict must be for the defendant upon the counts in the complaint alleging the dragging or pushing of said Lawrence as the cause of injuries which produced his death."
"(15) I charge you, gentlemen of the jury, that if you believe the evidence you will find that Ben McDermott, the engineer, did not know the whereabouts or peril of Joe Lawrence after he stepped in front of the moving engine.
"(16) If you believe from the evidence that the engine weighed 80,000 pounds, and that such weight, going at the speed of 6 miles an hour, came in contact with Lawrence's head, and thereby produced the fracture which caused his death, the verdict should be for the defendant.
"(17) Under the pleadings in this case, plaintiff has alleged that Lawrence was pushed and dragged, and thereby met his death, and that his position was known to McDermott, and the burden of proving this to your reasonable satisfaction rests upon the plaintiff. Plaintiff introduced McDermott as the only witness to establish this averment, and there is no conflict in the evidence that McDermott did not know the position of Lawrence. Therefore, if you believe this evidence, in connection with all the other evidence in the case, you will find for the defendant on such issue."
"(20) If the jury are in doubt from the evidence as to whether said fatal injury occurred by the footboard running over Lawrence, or being struck by the engine, or by the fall of Lawrence, or by being dragged or rolled after the engine could have been stopped, then the defendant was entitled to such doubt. If such doubt exists from the evidence, your verdict should be for the defendant."
"(23) It is not the law that the failure of the engineer to stop the engine, and the injury to intestate being thereby produced, that by reason thereof the engineer was guilty of negligence. The engineer performed all his duties required of him when he closed the throttle, reversed the engine, and applied the air brake, and that he sounded the alarm while reversing the lever and lost no time in so doing from the application of appliances, and if you find from the evidence he so acted, and such action was the action of a careful and prudent engineer, then the defendant is not liable, although you may be reasonably satisfied from the evidence that the intestate received the fatal injuries by being pushed, dragged, or rolled, after the performance of the preventive measures by the engineer.
"(24) Whether the engine was stopped as quick as it could have been, or not, is immaterial. The question for you to determine is: Was there negligence on the part of the engineer in applying the stopping instrumentality, and was this negligence, if it existed, the proximate cause of the injury? If you are reasonably satisfied from the evidence that there was not negligence in the application of stopping appliances, your verdict should be for the defendant."
"(29) If you believe from the evidence that Lawrence stepped upon the footboard of a moving engine, and that he immediately slipped and fell under the footboard, and that thereby he received the fracture of the skull producing his death, then the defendant is not liable in this action, and your verdict should therefore be for the defendant."
"(42) If you believe from the evidence that the footboard of the engine was from four to six inches above the rail, or from four to eight inches above the rail, and that said footboard passed over Lawrence, you can look to that, in connection with the other evidence in the case, to determine whether or not Lawrence received said fractures when said footboard passed over him. If you believe from the evidence he did, your verdict should be for the defendant."
"(46) If you believe the evidence, you will find that the fracture of the skull which produced the death of Lawrence was not caused by his being dragged or pushed."
"(62) I charge you, gentlemen of the jury, that the burden of proof is upon the plaintiff to prove to your legal satisfaction that plaintiff's intestate was rolled and dragged after the engine should have been stopped, and that he thereby received the injuries, and unless you so believe your verdict should be for the defendant."
"(75) An engineer in charge of an engine moving towards one in peril does not perform his duty if he gives no warning signal to awaken or quicken the party in peril to the natural impulse, as well as the legal duty, to conserve his own safety, unless it was reasonably apparent from the situation to the engineer, as one ordinarily prudent and skillful in that situation, that to warn would be unavailing.
"(76) If you believe the evidence, you will find that McDermott did not know whether Lawrence was in danger or in a place of safety upon the footboard; and under the circumstances I charge you that it was his duty to give such warning, if under all these circumstances it was reasonably apparent to him that the giving of it would quicken the knowledge of peril to Lawrence."
"(91) If you believe from the evidence that both McDermott and Lawrence were guilty of negligence at the time the fatal injury occurred to Lawrence, your verdict should be for the defendant."

John C....

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18 cases
  • McWhorter v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 27, 1999
    ...is this discretion limited in its exercise to the enumerated statutory grounds for challenge, but is general. Louisville & Nashville R.R. Co. v. Young, 168 Ala. 551, 53 So. 213. "Over three centuries ago Lord Coke in capsule form gave a comprehensive answer to the question we're now conside......
  • Aiken v. McMillan
    • United States
    • Alabama Supreme Court
    • October 15, 1925
    ... ... instruction requested required the court to charge that a ... certain fact was proved, which is improper. L. & N.R.R ... Co. v. Young, 168 Ala. 551, 53 So. 213 ... There ... was no reversible error in refusing the several general ... affirmative instructions requested ... ...
  • Leith v. State
    • United States
    • Alabama Supreme Court
    • June 30, 1921
    ...v. McClellan, 169 Ala. 90, 53 So. 155; Steed v. Knowles, 97 Ala. 573, 578, 12 So. 75; Davis v. Hunter, 7 Ala. 135. The case of L. & N.R.R. Co. v. Young, supra, the statement: " 'The statute prescribing the cases for which a person, drawn and proposed as a juror, may be challenged, was not i......
  • McWhorter v. Dunn
    • United States
    • U.S. District Court — Northern District of Alabama
    • January 22, 2019
    ...is this discretion limited in its exercise to the enumerated statutory grounds for challenge, but is general. Louisville & Nashville R.R. Co. v. Young, 168 Ala. 551, 53 So. 213.Over three centuries ago Lord Coke in capsule form gave a comprehensive answer to the question we're now consideri......
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