Louisville & N. R. Co. v. Mothershed

• Decision Date: 18 May 1899
• Parties: LOUISVILLE & N. R. CO v. MOTHERSHED.
• Court: Alabama Supreme Court

26 So. 10

121 Ala. 650

LOUISVILLE & N. R. CO v. MOTHERSHED.

Supreme Court of Alabama

May 18, 1899

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by W. H. Mothershed, administrator of Thomas Edmunds deceased, against the Louisville & Nashville Railroad Company, to recover for the negligent killing of plaintiff's intestate. Judgment for plaintiff. Defendant appeals. Affirmed.

The complaint, as originally filed, contained eight counts. This is the second appeal in this case. After the reversal of the judgment and the remandment of the cause on the former appeal, the lower court, on the second trial, gave the general affirmative charges for the defendant on each of the counts of the complaint, except the first and seventh. The first count of the complaint was as follows: (1) "The plaintiff, W. H. Mothershed, who sues in his capacity as administrator of Thomas Edmunds, deceased, claims of the defendant, a private corporation under the laws of the state of Alabama, the sum of twenty-five thousand dollars ($25,000) damages, for that whereas, heretofore, to wit, on the 18th day of May, 1891, the plaintiff's intestate was in the service and in the employment of the said defendant as a locomotive engineer, and the said defendant was engaged in operating a railroad from the city of Birmingham, Alabama, to the city of Decatur, in the state of Alabama, and running trains thereon, and running or operating the same by steam power; and while the plaintiff's intestate was in the discharge of his duties as engineer in charge of one of defendant's engines, which said engine was connected with and carrying one of defendant's freight trains on the said 18th day of May, 1891, on defendant's said road near Phelan station, another train, being operated and run by said defendant over its said railroad, was run into and collided with the train on which plaintiff's said intestate was then riding, and in said collision plaintiff's intestate was then and there killed, or received injuries from which he died immediately, by reason of the negligence of the conductor in charge and control of said train upon defendant's said railway which collided with the train on which his said intestate was then situated. And plaintiff avers that said conductor so in charge of and control of the other of said defendant's trains was then and there in the service and employment of the said defendant, and by reason of such employment and service had charge and control of said freight train. And plaintiff avers that said conductor stopped at or near a water tank, which said tank where said train stopped was in a curve on said road, and could not be seen by those in charge of a train approaching the place where said train had stopped, and that said train which had so stopped had become disabled, and had remained at said point beyond the time allowed for it to remain there under the orders by which it was being operated and under the schedule by which it was being operated, and the conductor in charge of said train negligently and carelessly allowed said train to remain there without sending back a flagman in the rear of said train the distance required by the rules and regulations of said defendant to send back flagmen to give approaching trains warning that the said train had been stopped on the track of said defendant longer than was allowed by the orders under which said train was being operated, or under the schedule under which said train was being operated. Plaintiff avers that the place where the said train had been stopped, and a train moving in the same direction with the train which had so stopped, that the rear of said train could not be seen for a distance of one-half a mile, and that the conductor in charge of said train failed to send back a flagman with danger signals at least fifteen telegraph poles, or 2,700 feet, so as to give warning to approaching trains that said train had been detained. Wherefore plaintiff sues and claims damages as aforesaid." The seventh count of the complaint was substantially the same as the first count, except that it set up the failure of the flagman on the first train to discharge the duties imposed upon him to go back and give the signal to the second train, upon which the plaintiff's intestate was the engineer. To these counts of the complaint the defendant filed the plea of the general issue and four special pleas. The second plea set up the contributory negligence of the plaintiff's intestate. The third fourth, and fifth pleas set up the contributory negligence of the plaintiff's intestate; and, after setting out the rule of the defendant as to the control which a train should be under when it approached stations along the defendant's road, further averred that the plaintiff's injury was caused by his failure to approach the station at which the accident occurred with his train under control. The fourth plea is copied in the opinion.

On the second trial, after filing the replications to the several pleas, by which the plaintiff joined issue on such pleas, he filed a special replication, numbered 8, to the first, third fourth, and fifth pleas. This replication is copied in the opinion. To this replication the defendant demurred upon the grounds copied in the opinion, which demurrers were overruled, and to this ruling the defendant duly excepted. The court did not allow this replication to be filed until after the trial had been entered upon, and several of the witnesses for the plaintiff had been examined. The defendant objected to the court allowing the special replication to be filed after several of the witnesses had been examined, upon the ground that it came too late. The court overruled this objection, and the defendant duly excepted.

The following facts were shown without dispute: The accident occurred on the morning of May 18, 1891, between the hours of 4 and 5 o'clock, at Phelan station, on the defendant's road, where there was a water tank, and which station was about 2 1/2 miles or 3 miles south from Cullman. Train No. 15 was running in two sections, the plaintiff's intestate being the engineer of the second section. The first section of the train stopped at Phelan station for the purpose of taking water. The usual time consumed for this purpose was from 5 to 10 minutes. While at said station, the train met with an accident, and it was detained there 25 or 30 minutes, standing upon the main track. The road from Cullman to Phelan station was down grade all the way, except at a point about half way between the stations, where there was a level piece of track for a distance of about one-eighth or one-quarter of a mile. This level piece of track was called by the witnesses a "sag" or "swag," and it was near the house of one Firetag. The grade from Cullman to the sag or swag of the track was variously estimated by the different witnesses at from 50 to 60 feet to the mile. From the swag to Phelan station the grade was variously estimated by the witnesses from 50 to 66 feet to the mile. Firetag's house was a mile or a mile and a quarter from Phelan station. Very near the house of Firetag there was what is known as the "water board," which was a signal board to tell the engineers of trains when to blow for brakes on approaching Phelan station. About 100 yards above Firetag's house there was a public road crossing, and about 200 yards below Firetag's house there was a private road crossing on defendant's track. The two sections of the train were going from north to south. The second section of the train, upon which the plaintiff's intestate was engineer, passed Cullman going at a rate of speed which was variously estimated by different witnesses at from 35 to 45 miles an hour, and from Cullman to Phelan station the rate of speed was estimated by different witnesses to be from 35 to 50 miles an hour; and while going at this speed it collided with the first section of said train, which was standing upon the main track at Phelan station, wrecking about 20 cars, including the engine on which the plaintiff's intestate was. It was from the effects of the injuries sustained in this wreck that the plaintiff's intestate died in four or five hours after the accident. On the second section of the train there were three brakemen. Said train had no air brakes, but the brakes were hand brakes, and it was necessary for them to be operated from the top of the cars.

The plaintiff's testimony tended to show that, shortly after the second section of said train left Cullman, Edmunds blew for brakes; that just before getting to the public road crossing past Firetag's house he blew for said crossing and also blew for the water board; that just after passing Firetag's house he again blew for brakes, and, getting no response from the brakeman, he blew the danger signal, calling for brakes, and continued to do so up to the time his engine collided with the caboose of the train at Phelan station; that the brakemen on his said train did not go to the brakes, or attempt to set them; that he reversed his engine, and did all that he could to check the speed of the train. There was also testimony introduced in behalf of the plaintiff tending to show that, if the brakemen on Edmunds' train had responded to the call for brakes when the call was first made, the speed of the train would have been checked, and the accident would have been averted. The witnesses for the plaintiff further testified that there was no flagman sent back from the train at Phelan to give the signal of danger to the second section of said train. The testimony for the defendant tended to show Edmunds' signaled for the public crossing, and that, after passing Firetag's house, he blew one long blast for brakes, and then blew no more; that at the speed at which the...