Louisville & N.R. Co. v. Black

• Decision Date: 07 May 1890
• Citation: 89 Ala. 313,8 So. 246
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. BLACK.

8 So. 246

89 Ala. 313

LOUISVILLE & N. R. CO. v. BLACK.

Supreme Court of Alabama

May 7, 1890

Appeal from circuit court, Butler county; JOHN P. HUBBARD, Judge.

This action was brought by F. M. Black, as the administrator of the estate of John R. Daniel, deceased, to recover damages for the alleged negligent killing of his intestate by a locomotive engine belonging to the defendant. The accident occurred on the 18th day of April, 1887, near Bolling in said county; and the action was commenced on the 6th July, 1887. The defendant pleaded not guilty, and contributory negligence; and issue was joined on these pleas. It appeared on the trial, as the bill of exceptions shows, that the deceased was deaf and dumb, and was walking on the railroad track, when he was overtaken and struck by the engine approaching from behind, being instantly killed, and his body thrown about 30 feet; that the track was there straight for nearly a mile, and the engineer had seen him for nearly a half mile back. The engineer thus testified: "There were three persons on the engine,-the flagman, the fireman, and myself. When we approached within about two hundred yards of the deceased, Miles, the flagman, commenced ringing the bell and continued to do so; and when within about one hundred yards of him, I commenced sounding the whistle. I gave probably thirty or forty short blows, and noticing that he did not get off or look around, I thought something must be the matter, and at once shut off the steam, reversed the engine, and applied steam again; and in the mean time the fireman applied the hand brakes to the tender, while I continued to blow the whistle; but the deceased did not get off the track, and the engine struck him and knocked him off running about seventy-five yards afterwards before it stopped." There was other evidence about the speed of the engine, the distance within which it could be stopped etc. Among several charges given by the court at the request of the plaintiff, to which the defendant duly excepted, were the following: "(6) The court instructs the jury that if the engineer in charge discovered the peril of the deceased and that the deceased was unaware of his peril, and that he failed, after such discovery, to use the means in hand of preventing the injury, when a prompt resort thereto might have prevented it, such failure will be regarded as reckless or intentional negligence, for which the defendant would be liable in this action." "(10) The court instructs the jury that if, after the deceased was seen, and his peril discovered, or the engine was in a position that the agents or servants of the defendant then in charge of it ought to have discovered his peril, they did not use proper skill and necessary efforts to avoid the injury, then they are guilty of wanton, or reckless, or intentional negligence, and the defendant would be liable therefor." The defendant also requested several charges in writing, and duly excepted to their refusal by the court. Among them were the following "(2) If the jury believe from the evidence that the injury and death of plaintiff's intestate was due to his failure to look back while on the track, and to the failure of defendant's servants to keep a proper lookout ahead, and that both of these causes combined caused his death, then it is their duty to find a verdict for the defendant." "(4) Although the jury may believe that, if the engineer had commenced to stop the engine sooner than he did, the accident would not have happened; yet if they find from the evidence that the fact that the deceased was deaf, or hard of hearing, was unknown to the engineer or persons on the engine, the engineer had a right to presume that the deceased would get off the track in time to prevent injury to himself; and if the jury believe that if the deceased had not been walking on the track, or would not have been injured, if he had used ordinary care and caution in looking back, then his negligence, if he continued on the track and failed to look back, is such negligence as will defeat a recovery, unless the injury was inflicted wantonly or intentionally." "(6) If the jury believe the evidence in this case, it establishes the fact that the deceased, who was either deaf, or very hard of hearing, went on the defendant's track at a place where he had no lawful right to be, and such conduct on his part defeats all right of plaintiff to recover, unless it is made to appear to the satisfaction of the jury that those in charge of the locomotive wantonly, recklessly, or intentionally injured the deceased; and if the jury believe from the evidence that the engineer acted on the presumption that the deceased would get off the track in time to prevent injury to himself, until it was too late to stop the engine in time to prevent the injury, then this is not evidence of such wantonness, recklessness, or intentional injury as will authorize the jury to find a verdict for the plaintiff." "(12) Under the undisputed evidence in this case, the deceased was not lawfully on the defendant's track, and the defendant owed him no duty, except not to injure him wantonly, recklessly, or intentionally. (13) If the jury believe from the evidence that while plaintiff's intestate was upon defendant's track, the train which injured him was approaching him at the rate of twenty-five or thirty miles an hour, and could have been seen by him if he had looked back, then, upon this state of facts, the failure of the defendant's servants to act on the presumption that he was deaf, or hard of hearing and to stop the train, on seeing him on the track, is not such evidence of wanton, intentional, or reckless injury as will authorize a recovery by plaintiff." "(23) If the jury believe from the evidence that the fact that the deceased would not get off the track was known by the engineer too late to enable him to stop the engine, then they must find for the defendant. (24) Unless the jury believe from the...