Rehearing
Denied Jan. 29, 1931.
Appeal
from Circuit Court, Chilton County; George F. Smoot, Judge.
Action
under Homicide Act by J. D. Scott, as administrator of the
estate of G. B. Scott, deceased, against the Louisville &
Nashville Railroad Company. From a judgment for plaintiff
defendant appeals.
Reversed
and remanded.
See
also, 217 Ala. 255, 115 So. 171.
Pleas
alleging contributory negligence to time of injury
sufficiently alleged such negligence was subsequent to, or
concurrent with, defendant's subsequent negligence.
Count D
is as follows:
"Plaintiff,
who sues as the administrator of the estate of G. B. Scott,
deceased, claims of the defendant $100,000, for that on
to-wit: November 25, 1923, plaintiff's intestate while
riding in an automobile in a public highway in the county
of Cullman, State of Alabama, was killed in said county and
State as follows: said automobile was run against by a
railroad train at a public road crossing and dragged
several hundred yards, and intestate was so injured thereby
that he died a short time thereafter. Plaintiff avers the
death of his intestate was proximately caused by the
negligence of the defendant's servants or agents while
acting within the line or scope of their employment, which
negligence consisted in this:
"Plaintiff
avers said servants or agents, after becoming aware of
the peril of plaintiff's intestate being killed by
said train, negligently failed to use all of the means at
their command to avoid said intestate being killed by
said train, when by the use of said means said train
would have been prevented from killing said
intestate."
The
other counts in this group are the same in pertinently
material respects.
Count J
is as follows: "Plaintiff claims of the defendant one
hundred thousand dollars ($100,000.00), damages, for that,
on, to-wit, November 25, 1923, plaintiff's intestate was
killed in the county of Cullman, State of Alabama, as
follows: A train ran against an automobile in which said
intestate was riding and killed him. Plaintiff avers the
death of his intestate was proximately caused by the wanton
conduct of the defendant's servants or agents while
acting within the line and scope of their employment, which
wanton conduct consisted in this, said servants or agents
wantonly dragged said automobile a great distance with the
knowledge plaintiff's intestate would probably be injured
thereby and with reckless disregard of the
consequences."
Pleas
of defendant were as follows:
"10.
Defendants for further answer to each count say that the said
plaintiff's intestate was himself guilty of negligence,
which proximately contributed to his injuries and death in
this: Said plaintiff's intestate, while approaching the
railroad track, saw a train approaching upon said track, and
at a rapid rate of speed, and while said train was about 100
to 150 feet away, and after seeing said train and knowing
that it was approaching the crossing, he attempted to cross
the tracks in his automobile immediately in front of said
approaching train, and as a proximate consequence of his
attempting to cross the track immediately in front of said
train, after knowing it was approaching the crossing at a
rapid rate of speed, he was guilty of negligence, which
proximately contributed to his injuries and death.
"11.
Defendants for further answer to each count, say that the
said plaintiff's intestate was himself guilty of
negligence, which proximately contributed to his injuries and
death in this: That said plaintiff's intestate, while
engaged in approaching the railroad tracks at a public
crossing saw and observed the train that was approaching said
crossing at a rapid rate of speed, and said defendants aver
that
at the time the plaintiff's intestate saw this train
approaching he was sufficiently far away from the tracks to
have stopped his car in a place of safety from the
approaching train, and that he could have done this, but
after seeing said train, he continued to journey towards the
tracks in his efforts to cross the same in front of said
train and ahead of it, and in close and dangerous proximity
to it and as a proximate consequence of his knowingly so
attempting to drive the automobile across the tracks in front
of the train, he was guilty of negligence, proximately
causing his injury and death."
"15.
Defendants, for further answer to each count, say that the
said plaintiff's intestate was himself guilty of
negligence, which proximately contributed to his injuries and
death in this: The said plaintiff's intestate drove an
automobile up to within a few feet of the railroad track upon
which an engine was approaching, and said plaintiff's
intestate stopped said automobile before it got upon the
track, upon which it was struck and upon which an engine was
approaching, and defendants aver that while said automobile
was stopped, the plaintiff's intestate saw and heard the
approaching engine and knew that it was only a short distance
away, and after seeing and hearing said approaching engine
plaintiff's intestate negligently attempted to drive said
automobile across the track in front of said engine, and in
close and dangerous proximity thereto, and as a proximate
result of said act, was injured and killed."
"17.
Defendants, for further answer to each count, say that the
said plaintiff's intestate was himself guilty of
negligence which proximately contributed to his injuries and
death in this: That the said plaintiff's intestate drove
said automobile in which he was riding, up to within a few
feet of the railroad track, upon which an engine was
approaching, and before said automobile reached the track
said plaintiff's intestate was made aware of and had
knowledge of the approaching train and its proximity and with
such knowledge said plaintiff's intestate, thereafter
negligently attempted to drive said...
