Louisville & N.R. Co. v. Moran

• Decision Date: 07 November 1914
• Docket Number: 715
• Citation: 190 Ala. 108,66 So. 799
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. MORAN.

66 So. 799

190 Ala. 108

LOUISVILLE & N.R. CO. v. MORAN.

No. 715

Supreme Court of Alabama

November 7, 1914

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by Nina L. Moran, as administratrix, etc., against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The following is the map referred to in the opinion:

(Image Omitted)

Eyster & Eyster, of New Decatur, for appellant.

Callahan & Harris, of Decatur, for appellee.

DE GRAFFENRIED, J.

In reporting this case, the reporter will set out the map which is found on page 22 of the transcript.

1. W.J Moran resided in New Decatur at a point west of the above depot. He left home, on the day of his death, at about 6:45 p.m., and went to a store in New Decatur which lies east of the above depot. He could not have tarried long in New Decatur, because his dead body was found on the west side of the north main track of the Louisville & Nashville Railroad at or near the above depot at about 7:15 or 7:20 p.m. of the same day. In other words, he was dead in about one-half of an hour after he left home. When he left home he was on foot and everything indicates that he remained on foot until his death. When he left home it was raining, but not heavily, and he left without a raincoat or an umbrella. While he was in New Decatur he bought an umbrella. The wind was blowing from the south when Moran was in New Decatur and was blowing from that direction at the time of his death. The Louisville &amp Nashville Railroad Company has a double track at New Decatur. The main track on the east side is used by north-bound trains, and the one on the west side by south-bound trains. At 7:15 p.m. on that day the passenger accommodation train from Birmingham to Decatur arrived at New Decatur on time. It remained there about three minutes, when it proceeded north to its destination, the station at Decatur, which is a mile or two north of New Decatur.

At New Decatur the track of the Louisville & Nashville Railroad both north and south of the station, is straight for a long distance, and the track is level. In other words, there are no fills or cuts in the roadbed for a considerable distance both north and south of the station, and there are no curves in the track. The result is that a train which approaches the station at New Decatur either from the north or from the south can be seen by an ordinary observer, standing on or near the track at or near the station, for a considerable distance before it reaches the station.

2. In explanation of the map which the reporter has set out in his summary of the facts, we desire to say that Johnson and Grant streets, which run east and west, are the streets which are usually traveled by pedestrians going to and from New Decatur to the station at New Decatur, and that the path, shown on the map as running diagonally from the opera house on Johnson street by the edge of the north end of the station across the railroad into what is known as "Gordon Drive," in New Decatur, is a path which is much traveled by pedestrians. Sometimes pedestrians walk down Grant street, and then walk through the hall shown in the station house, and then take the path which leads from the door shown on the map across the railroad into "Gordon Drive." The body of the deceased was found north of the path which leads from the door across the railroad, but whether it was found south or north of the path leading from the opera house across the railroad to "Gordon Drive" may be said to be disputed. The jury could have found that it was near this pathway, or perhaps that it was north of the depot itself when found.

On the occasion to which we refer, the locomotive stopped with its pilot north of the north end of the station. The engine and tender were from 60 to 70 feet in length, and next to them was the baggage car, which was 50 or 60 feet long, and after the baggage car came two passenger coaches.

3. The following parts of the testimony, which we copy from the bill of exceptions, give the facts on the side of the plaintiff. A witness, R.E. Chandler, testified for the plaintiff substantially as follows:

"I knew W.J. Moran, and had known him five or six years. I saw him the night of his death. He was at my store. He bought an umbrella from me. This was about 15 or 20 minutes after 7 o'clock. It was a rainy night. The wind was blowing. My store is at the corner of Second avenue and Moulton street. The Masonic Theatre was located at that time on Johnson street, one-half block from Second avenue, on the west side of Second avenue, on the street that leads toward the New Decatur depot. After Mr. Moran bought the umbrella, he walked up Second avenue towards Johnson street. I was familiar with the New Decatur depot and its surroundings at that time. There is a path leading along Johnson street towards the depot, which is traveled considerably. This path intersects and crossed the railroad at the north end of the depot. There was another path there, which led across the tracks from Gordon Drive. The path at the north end of the depot was traveled frequently by people going to and coming from West Decatur. The population of West Town was about 2,000."

A witness, Houk, testified as follows:

"I saw him the night he was killed. He was passing the Masonic Opera House. I was inside the hall when he passed. He was going west towards the New Decatur depot, and that was towards his home also. It was a bad night, raining, and some wind. He had an umbrella over him. It was after supper when I saw him. It was dark."

A witness, Kline, testified substantially as follows:

"On the night W.J. Moran was killed, I was at the New Decatur depot. Was carrying papers at that time. I met the accommodation train that night. I was at the depot when the accommodation train came in--waiting for it. When I heard the train coming in, I went out to meet it. I went northwest from the door, about where the baggage car usually stands, and from there looked west. The train was coming from the south. I don't remember what direction I was looking when the train was coming up. I went out when I heard it blow. Was up there before it came in, and stood there and waited for it. I didn't remember what direction I was looking. When the train came up, I waited for the baggageman to throw my papers off. The engine and part of the baggage car passed me. When I got my papers, I took them over to the depot. I did not see Mr. Moran at any time. I saw nobody on the north. When the accommodation train pulled out, I was standing over by the door, and Mr. Hubbard said he thought there was a hat box or he saw a man on the track. The man (or the hat box, as Mr Hubbard first thought it was) was about halfway between the north end of the depot and the crossing. The dead man, Moran, was found about 20 feet south of the north end of the depot. Part of his body was lying on the track. His head was lying northwest and his feet southeast. The middle of his body was across the west rail and on the outside of the rail, and his feet and legs on the inside of the rail. I didn't see this man there before the train came in. It seemed like he took a breath after I got to him. Mr. Hubbard was the first to get to him. Mr. Hubbard went there before I did. The body had not been moved. *** I saw the accommodation train come in that night. I first saw it about where the street car crossing is--south of the depot. It was slackening its speed. I don't know whether the bell was ringing or not. Seemed like the whistle blew below the crossing, and also at the end of the coal chute. I don't know whether the headlight was burning or not. The electric light was burning at the depot, and the electric light at the street car crossing. Moulton street is 300 or 400 yards north of the depot, and street car crossing 300 or 400 yards south of the depot. I walked out from the depot to the tracks about the place where the body of Moran was picked up on the tracks after the train pulled out. It was just about opposite where the body was found after the train pulled out. I was on the east side of the north-bound main. The north-bound main is the eastermost track, and I was standing about where the body was lying afterwards, and I was on the east side of the north-bound main, somewhere near there. I didn't see anybody get on the track. I was right at the track, standing right there. There was no obstruction between me and the track, except the trucks, and the ground was level. The trucks were about where I was. There was no person on the track. I didn't see anybody. I had a full view of the whole track, and didn't see anybody there. I stayed there until the engine passed me, and I followed the baggage car until it stopped. I walked alongside of the baggage car door, until the train stopped. I stood there by the track until the engine and tender got past me, and then followed the baggage car until it stopped, and I didn't see any one. As the engine came up in full view of me, I didn't see any one on the south. I could see all around there. I didn't see any one on the track. I saw the engine approaching and heard the whistle. I didn't see any one on the track, and I had a full

view of the engine. I didn't see anybody north of it on the track. I had a full view of the engine. I didn't see anybody north of it. I had a view north and south on the track and didn't see the engine run over any one. *** I was looking for the train when it pulled in, looking down towards the train. At the time the train was coming in, I didn't pay any attention to what was going on north of me. Seemed like the baggage car stopped about where the body was afterwards found. I don't remember definitely how it was situated.

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