Louisville & N.R. Co. v. Orr

• Decision Date: 16 May 1899
• Citation: 121 Ala. 489,26 So. 35
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. ORR.

26 So. 35

121 Ala. 489

LOUISVILLE & N. R. CO. v. ORR.

Supreme Court of Alabama

May 16, 1899

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action by Horace Orr, as administrator of the estate of Hannah Orr deceased, against the Louisville & Nashville Railroad Company, to recover damages for the alleged negligent killing of the plaintiff's intestate. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint contained three counts. The substantial averments of these counts are copied in the opinion. To the whole complaint, the defendant pleaded the general issue, and by the second plea the contributory negligence of the plaintiff's intestate. In the third and fourth pleas, the defendant set up that the plaintiff's intestate was guilty of wantonness, in the deliberate exposure of herself to the danger that caused her death, in that she contributed to the injury which resulted in her death. The fifth and sixth pleas were interposed to the first and second counts of the complaint, and set up as a defense the contributory negligence of the plaintiff's intestate. The seventh plea was as follows: "For further answer to said complaint the defendant says: That it was not guilty of any gross negligence, wantonness, or recklessness, but that plaintiff's intestate, in full view of defendant's approaching train, deliberately stepped upon the track in an attempt to cross said track in front of said advancing train and she made said attempt to cross when said train was so near her that she could not get across said track without being struck, and the fact that said plaintiff's intestate did not have sufficient time to cross said track in advance of said train was known to her when she stepped upon said track. Said approaching train was in full view of the intestate, and seen, or could have been seen, by her for fully one-half mile from where plaintiff's intestate was. That, at the time it was approaching where plaintiff's intestate was, the fireman was ringing a bell, and the bell was heard, or might have been heard, by said intestate." To the second plea the plaintiff demurred upon the ground that it did not deny the gross negligence of the defendant charged in the complaint, and that said plea was no answer to all the counts of the complaint. To the second and third pleas the plaintiff demurred upon the ground that the wanton and reckless conduct of the plaintiff's intestate as alleged in the complaint was no excuse, and constituted no defense to the action. The demurrers to the second, third and fourth pleas were sustained, and to the sustaining of the demurrers to each of the pleas the defendant separately excepted. To the fifth and sixth and seventh pleas the plaintiff filed a replication, which is copied in the opinion. To this replication the defendant demurred upon the following grounds: "(1) It is no answer to said plea. (2) The matters therein stated would be no excuse or justification for plaintiff's intestate to put herself in front of said approaching train, whereby she would be run over. (3) The matters therein stated would not excuse plaintiff's intestate for getting in front of said moving train, whereby she herself became in peril of being struck by said train." This demurrer was overruled, and the defendant duly excepted. Thereupon the defendant filed a rejoinder to said replication, in which it averred "that plaintiff's intestate approached said track with step-grandchild, which was in her charge and custody, and whose duty it was to take care of and watch said child as they approached said track, but that in full view of said train she neglected and carelessly allowed said child to run away from her and cross said track in advance of her, and, in an effort to get across said track herself after said child had crossed in safety, she was struck by said train; and defendant says that, under this state of facts, she was guilty of negligence which contributed to her death." To this rejoinder the plaintiff demurred upon the grounds (1) that it avers only matters already in issue under the general issue and the pleas of contributory negligence; and, (2) in so far as said rejoinder relates or may refer to the third count of the complaint, because it sets up contributory negligence as a defense to the wanton or gross negligence and carelessness charged in the said third count. This demurrer was overruled, and thereupon the plaintiff filed surrejoinders as follows: "(1) That said rejoinder is untrue. (2) That, after said child had crossed the railroad track, it started back towards the plaintiff's intestate and was approaching her on, or in close and dangerous proximity to, and approaching, the track in front of the advancing train, when plaintiff's intestate, to save the child, approached on or near to said track, at a time when the child was in danger, in order to rescue it. (3) The same facts as set out in surrejoinder 2, and, in addition, that said intestate did push said child off or away from the track, but was killed by the swiftly-moving train before she herself could escape from the track." To the second surrejoinder the defendant demurred upon the ground that the matters therein stated constituted no excuse or justification for plaintiff's intestate putting herself in front of the approaching train, whereby she was injured; and (2) because the matters set up in said rejoinders were a departure from the cause of action set out in the plaintiff's complaint. This demurrer was overruled, and the defendant duly excepted. Thereupon the defendant asked leave to file a paper, which was designated and marked "A," which was in words and figures as follows: "For answer to surrejoinders Nos. 2 and 3, defendant says that, at the time the child crossed said track,-at the time it approached said track,-those in charge of defendant's train could not have stopped the same by the use of any means known to skillful engineers, nor could the same have been stopped when intestate approached the track, or came in view of those in charge of the train. The intestate came into said track so suddenly in front of said train that the engineer in charge thereof could not have prevented the same striking said intestate, and did not see said intestate before she was struck by the engine." The court refused to allow this paper to be filed, and to this ruling the defendant duly excepted. The trial was had upon issue joined upon the pleadings.

Briefly stated, the facts are that the plaintiff's intestate was killed in the town of Hartselle on the 16th day of November 1895, at a crossing of defendant at what is known as "College Street," in the town of Hartselle, and at a point 600 feet north of defendant's depot. The track at the point of the accident, and for some distance on either side of the crossing, was straight, and the train which struck appellee was going from south to north. The depot of defendant was situated south of the crossing where the accident happened. The train which struck plaintiff's intestate was a freight train, and was variously estimated by witnesses for the plaintiff to be running from 30 to 40 miles an hour. Some of plaintiff's witnesses testified that no whistle was blown by the train, and that no bell was rung, while others testified that some signals were given for what is termed the "board" at the depot, and no signals given between the depot and College street crossing. The testimony of defendant's witnesses put the speed of the train at from 20 to 25 miles an hour. Plaintiff's intestate, with her little grandchild or stepgrandchild, variously stated to be from 3 to 6 years old, approached the track of appellant from the west, going in an easterly direction. Where College street crosses the railroad of defendant, there are two tracks,-a side track west of the main line, and the main line,-the former of which would be reached first by persons going along College street in an easterly direction, as plaintiff's intestate was going. It was shown without dispute that the child was in charge of plaintiff's intestate, and that, just before or about the time it reached the side track, it ran away from her, across the side track, and over the main track, and onto the east side of the main track, and that she was attempting to follow it. Some of the witnesses said that the child turned back and was on the track when plaintiff's intestate started on the main track of defendant, while others said that the child continued to run on across the track in an easterly direction; but all the witnesses agree that the train was within a very short distance-50 or 100 feet-of the College street crossing when the child ran on the main line. It was shown without dispute that any one, when standing on the side track at College street, could, by turning his eyes to the right, or in a southerly direction, have seen the train at the depot. The center of the side track was 19 feet from the center of the main line. There was a show car standing on the side track north of the depot, near Main street, but the witnesses testified that it would not have cut off the main line from a person standing on the side track at College street crossing, and the person so standing could plainly see the train at Main street crossing, which was 650 feet south of College street crossing. The accident happened in the daytime. The only disputed facts are as to the rate of speed and as to the giving of signals. The testimony for the defendant showed that at its depot was what was known as the "board," or "red board," as one of the witnesses describe it, and that it was necessary for trains, before passing the station at Hartselle, to blow the signal, or, as one of the witnesses put it, "to call for the board," in order to ascertain whether there...