Louisville & N.R. Co. v. Lee

• Citation: 216 Ala. 196,112 So. 755
• Decision Date: 31 March 1927
• Docket Number: 6 Div. 539
• Parties: LOUISVILLE & N.R. CO. et al. v. LEE.
• Court: Supreme Court of Alabama

112 So. 755

216 Ala. 196

LOUISVILLE & N.R. CO. et al. v. LEE.

6 Div. 539

Supreme Court of Alabama

March 31, 1927

Rehearing Denied May 19, 1927

Appeal from Circuit Court, Cullman County; O. Kyle, Judge.

Action by I.L. Lee, as administrator of the estate of Leona Scott deceased, against the Louisville & Nashville Railroad Company and J.H. Snyder for wrongful death of plaintiff's intestate, resulting from a collision between a train of the defendant railroad company and the automobile in which intestate was riding. From a judgment for plaintiff defendants appeal. Affirmed.

Eyster & Eyster, of Albany, for appellants.

Paine Denson, of Cullman, for appellee.

ANDERSON C.J.

This case went to the jury on count 1 alone, and which charges simple negligence, and the only insistence as to reversible error was the failure of the trial court to give the general charge in favor of the defendants, and upon the theory that no case was made sufficient to go to the jury. There was no contributory negligence involved, and whether there was or was not any subsequent negligence, and which could have been shown under count 1 of the complaint, this question was decided in favor of the defendants by the giving, by the trial court, of the general charge as to count 2 in favor of the defendants.

We think it was a question for the jury as to whether or not the engineer was guilty of negligence for a failure to give the proper signals in approaching the crossing. True, this was a case of negative as against positive proof as to the signals but it was a question for the jury as to whether or not the witnesses who did not hear the signals would have heard them if given, and under our scintilla rule the defendants were not entitled to the general charge. True, if the circumstances surrounding witnesses at the time they did not hear the signals were such that they could not have heard if given, there would be no conflict between their evidence and those who testified positively to the giving of the signals, but we cannot say that the plaintiff's witnesses in this case were so situated. It is also true that one witness testified that he was slightly deaf in one ear, but he had heard signals on previous occasions when similarly situated, and one witness was riding on the train which was possibly making some noise, but he also stated that he had heard the signals at other points when the train was running and this case is...