Louisville & N.R. Co. v. Sunday

• Decision Date: 19 October 1950
• Docket Number: 3 Div. 542
• Citation: 48 So.2d 216,254 Ala. 299
• Parties: LOUISVILLE & N. R. CO. v. SUNDAY.
• Court: Alabama Supreme Court

Page 216

48 So.2d 216

254 Ala. 299

LOUISVILLE & N. R. CO. v. SUNDAY.

3 Div. 542.

Supreme Court of Alabama.

Oct. 19, 1950.

Steiner, Crum & Weil, of Montgomery, and McMillan, Caffey & McMillan, of Brewton, for appellant.

H. C. Rankin, of Brewton, for appellee. Count 1 alleges that on June 5, 1943, 'the defendant, by and through its servants or agents, was operating a railroad steam engine over its railroad tracks in the town of Flomaton, Escambia County, Alabama, and then and there defendant's said servants or agents acting in the line and scope of their service and employment, so negligently operated said engine as to cause the same to run over, upon or against the plaintiff's intestate, Mary Ann Sunday, as she was lawfully proceeding on foot across said track at a populous business crossing a short distance westerly from the railroad depot of the defendant in said town, and plaintiff avers that as the proximate result of the aforesaid negligence her said intestate was killed practically instantly.'

Count 2 is as follows: 'Plaintiff claims of the defendant the sum of Twenty-five thousand ($25,000.00) Dollars damages for that, on to-wit, the 5th day of June, 1943, said defendant was engaged in the operation of a railroad in Escambia County, Alabama, operating thereon locomotives propelled by steam, and the agents or servants of the defendant while acting in the line and scope of their employment and who were then and there in charge or control of a steam locomotive of said defendant at said time and place, namely, on its tracks in the town of Flomaton, Alabama, so negligently operated said locomotive as to cause the same to run over, upon or against the plaintiff's intestate who was then and there lawfully proceeding on foot across the railroad track of the defendant at or near the Palafox Street crossing, and at a place and time where said track was so frequently used by the public as a passway or crossing by pedestrians that some one was likely to be in a position of danger there, which facts and circumstances were known to those in charge of the approaching locomotive of the defendant, and that the defendant's agents or servants in charge of said locomotive, in the line of their duties, at the time complained of, knowing of said use of said track by pedestrians as a passway or crossing at said time and place, negligently failed to keep a look out for persons situated as was this intestate at the time, and negligently ran said engine or locomotive in such reckless and dangerous manner, without giving an alarm of approaching danger such as blowing the whistle or ringing the bell, that it ran upon, over or against the body of the plaintiff's intestate, killing her; and, that the said fatality was the proximate result of the aforesaid negligence.'

The following charge was refused to defendant: '7. The court charges the jury that a person stepping from a path between two railroad tracks immediately in front of an approaching engine upon one of said tracks is guilty of contributory negligence in failing to stop, look and listen before going on the track, or in going on it with full knowledge of the situation and thus taking her chances, and that if you believe from the evidence that the plaintiff's intestate did so step from a path between two tracks and immediately in front of an approaching engine, the plaintiff cannot recover in this case.'

LAWSON, Justice.

This action was originally filed by Century Sunday, as administrator of the estate of Mary Ann Sunday, deceased, under the wrongful death or homicide statute, § 123, Title 7, Code 1940, against the Louisville & Nashville Railroad Company.

The amended complaint upon which the case was first submitted to the jury contained six counts. The first, third, and fourth ascribed the death of Mary Ann Sunday to the negligence of the agents or servants of defendant, acting within the line and scope of their employment. The second count charged willful and wanton conduct on the part of defendant's agents or servants or employees while acting within the line and scope of their employment. The fifth count charged corporate participation in the alleged negligent act. The sixth count ascribed the death to subsequent negligence.

The defendant pleaded the general issue, not guilty, to all of said counts and contributory negligence to the simple negligence counts.

There was verdict for plaintiff. From a judgment following the verdict, the defendant railroad company appealed to this court.

We reversed the judgment of the trial court and remanded the cause. Louisville & N. R. Co. v. Sunday, 248 Ala. 597, 28 So.2d 796. The reversal was predicated on the holding that the defendant was entitled to the general affirmative charge as to Counts 2, 5 and 6, and on the further holding that the trial court erred in defining wantonness in the oral charge. As to those counts in the complaint charging simple negligence, we held that 'the question as to whether the defendant's agents or employees were guilty of negligence proximately causing the death of plaintiff's intestate was, under the evidence, for the jury as was the question of contributory negligence.' 248 Ala. 601, 28 So.2d 798.

While the cause was pending in this court, Century Sunday died. After remandment, Mildred Sunday was issued letters of administration de bonis non on the estate of Mary Ann Sunday, deceased. It was ordered that the suit filed by Century Sunday, as administrator, survive, continue and proceed in the name of Mildred Sunday, as administratrix de bonis non of the estate of Mary Ann Sunday, deceased, as the substituted and succeeding party plaintiff.

After remandment, the complaint was amended so as to contain only two counts, both charging simple negligence.

Verdict was for the plaintiff in the sum of $5,000. Judgment was in accord with the verdict, and from that judgment this appeal is prosecuted by the defendant railroad company.

It is first insisted that the action of the trail court in overruling the demurrers of defendant necessitates a reversal.

In a complaint such as is under consideration here, it is not necessary to allege the names of the agents, servants or employees of defendant or that their names are unknown to the plaintiff. Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370; Western Railway of Alabama v. Turner, 170 Ala. 643, 54 So. 527. Hence the demurrer taking that point was not well taken. The case of Southern Ry. Co. v. Cunningham, Adm'r, 112 Ala. 496, 20 So. 639, relied upon by appellant's counsel, is distinguished in Shelby Iron Co. v. Morrow, supra.

Demurrer of defendant challenged the complaint on the graund that for aught appearing plaintiff's intestate was a trespasser and, hence, the complaint shows no duty owed by the defendant to the plaintiff's intestate, the breach of which would enable the plaintiff to recover for simple negligence.

In cases of this character, the complaint need not define the quo modo, or specify the particular acts of diligence omitted. Yet when simple negligence...