Louisville & N. R. Co. v. Bogue

• Decision Date: 11 April 1912
• Citation: 177 Ala. 349,58 So. 392
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. R. CO. v. BOGUE.

58 So. 392

177 Ala. 349

LOUISVILLE & N. R. R. CO. v. BOGUE.

Supreme Court of Alabama

April 11, 1912

Rehearing Denied April 25, 1912.

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Action by Julia A. Bogue, as administratrix, etc., against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McClellan J., dissenting.

George H. Parker, of Cullman, and John C. Eyster, of Decatur, for appellant.

J. B Brown, of Cullman, for appellee.

SOMERVILLE J.

Plaintiff's intestate, a boy 11 years of age, was killed by defendant's freight train at Holmes Gap, Cullman county in June, 1907.

The original complaint filed in June, 1908, was framed under the Employer's Liability Act (Code 1907, § 3910), and alleged that intestate was in the service of defendant, and was engaged in the discharge of his duty at the time he was killed. Seven additional counts were added by way of amendment in March, 1910, and demurrers were sustained to all the counts except 4, 5, 6, 7, and 8. Of these counts 4 and 6 were eliminated by charge of the court, the final issues being on counts 5, 7, and 8, which the court properly construed as framed under Code, § 2485, and not under the Employer's Liability Act.

Count 5 alleges that intestate was lawfully walking along or near defendant's railroad track in said village by the invitation of one Lawrence, who was defendant's section foreman, and whose duty it was to superintend and see to the lighting of the switch lights at defendant's station, and who had previously procured or requested intestate to light them, and that, while intestate was so engaged, and was proceeding along or near said track, in the usual route followed by those who performed such service, defendant's servants so negligently managed its train, which they were then engaged in running, that the engine or a car thereto attached was caused to run against or over intestate, thereby proximately causing his death.

Count 7 is, in substance, the same as count 5, except that intestate is alleged to have been acting under the instructions of one Huie, who was defendant's station agent at Holmes Gap.

Count 8 alleges simply that intestate was walking along or near defendant's track in the village of Holmes Gap in a position of peril, and that defendant's servants negligently ran said train over or upon him after discovering his peril.

Defendant pleaded the general issue, contributory negligence, and the statute of limitations of two years; the theory of the last plea being that the amendment was as to counts 5 to 10, inclusive, a departure from the original cause of action.

One of plaintiff's witnesses testified that he saw intestate walking along down the main track on the ends of the ties, and saw the train approach him from the rear; that the whistle was not blowing and the bell not ringing, but the engine was making a great deal of noise, and had just previously blown for the station; and that the front of the engine or the steam chest struck intestate down. A number of defendant's witnesses, on the other hand, testify that intestate was walking a distance of three or four feet from the main track, and that at the time he went under the wheels of the train the engine and several cars had already safely passed by him; the general consensus being that the intestate voluntarily moved toward the passing train for some purpose of his own. The train was moving slowly--about eight miles an hour--and intestate was found lying with his body outside the rails, and with one leg, nearly severed at the hip, lying inside.

The engineer who was running the engine, testifying as a witness for plaintiff, stated that he first saw intestate about 300 yards away, walking by the side of the track, and that he last saw him about 100 yards away; that he was walking along 6 or 7 feet from the main track where he was safe from danger, and that he gave no indication of any intention to go on the track; and that witness did not blow an alarm, nor make any effort to stop or slacken speed.

The fireman was during that time engaged in firing the engine, and did not see intestate at all. Intestate was of sufficient age and capacity to attend to lighting the lamps, in which he had had much experience, and had for several months performed the task efficiently and satisfactorily, and had done so while trains were passing both ways.

The complaint showed that intestate was not suing as employé of defendant, but that he was personally authorized by the section foreman to attend to the switch lamps.

1. Whether plaintiff's intestate was a licensee or a trespasser on and about defendant's track at the time he was killed was an important issue in the case, and it was, of course, proper for plaintiff to allege in her complaint that intestate's presence and actions there were at the invitation or under the directions of the station agent or section foreman, in order to show that he was not a trespasser. Hence the motions to strike out those parts of counts 5 and 7 were properly overruled.

2. Count 8 is founded on the assumption that, although intestate was a trespasser on or near defendant's track, yet defendant's servants negligently ran its train over him after discovering his peril; thus invoking the doctrine of subsequent negligence. This general averment of negligence necessarily includes the charge that the train could have been stopped in time to avoid killing intestate, and the count was not subject to demurrer for want of such specific averment. So. Ry. Co. v. Stewart, 153 Ala. 133, 45 So. 51.

3. Plaintiff, who was intestate's mother, testified that on a former occasion she went with intestate when he was lighting the switch lamps and described how he did it. We think this was wholly immaterial, but it was plainly not prejudicial to defendant; nor does it appear that any objection was made to the question calling for this statement. Hence there was no error in overruling defendant's motion to exclude it.

4. It was clearly improper for the engineer to state "whether or not the train was being negligently handled." The question called for the conclusion of the witness, and invaded the province of both court and jury. The court properly excluded it.

5. It was proper for plaintiff to show that the route followed by intestate while lighting the lamps--that is, along the ends of the cross-ties of the main track--was the usual route followed by those who discharged that duty, not to rebut the implication of contributory negligence, but to show that intestate kept within the scope of his license, and did not by exceeding it become a trespasser. Defendant's objection to this testimony was not well taken.

6. Plaintiff's witness Lawrence, defendant's section foreman, testified to the capacity, intelligence, and efficiency of intestate in attending to the lighting of the lamps. On cross-examination he was asked by defendant if intestate was not of sufficient judgment, intelligence, capacity, and experience to know that to jump on trains at that time was wrong and dangerous. This question was not calculated to test or impugn the witness' testimony in chief, and it was objectionable in improperly assuming as a proven fact that intestate jumped on the train at the time in question. There was no error in its exclusion.

7. There was no objection to allowing plaintiff's witness Brown to state that he had sometimes performed the duty of lighting the switch lamps, since it served to show his familiarity with the locality, and could not possibly prejudice defendant in any case.

8. This witness was allowed to state that there was a summer hotel opposite to the south switch. We are at a loss to discover any relevancy between this fact and the issues of this case. But it is too irrelevant and too innocuous to be complained of by defendant.

9. Plaintiff asked the witness Casey, an expert locomotive engineer, this question: "Suppose he [the fireman] was at his post there, and he saw a person on the track, on the end of the ties ahead of the engine, what was his business and duties in reference to that person?" He answered it would "be his duty to warn the engineer that he was approaching danger, or somebody was in danger." Defendant objected to both question and answer on the ground that "no predicate had been laid." The answer was doubtless objectionable as stating a mere conclusion of the witness; but, assuming that the objection was intended to go to the qualifications of the witness, it was not well taken, and was wholly inapt.

10. On cross-examination plaintiff asked defendant's witness Stone, who was conductor of the train in question: "Suppose this engineer was coming along here (referring to the diagram), and the engineer discovered this little boy on the end of the ties, with something in his hand, with his back to the train, and apparently unconscious of the approach of the train, what is the duty of the engineer?" He answered that, "if he was on the track, it is the duty of the engineer to blow the signal alarm." Defendant objected to both question and answer on the ground that they were hypothetical, and not based on the evidence in the case, which objections were overruled.

The testimony of plaintiff's witness Blankenship, however incredible it may seem, had some tendency to show that intestate was walking on the end of the ties in front of the approaching train, and that he was run down while so walking apparently unconscious of his danger. It appears, also, that the engineer saw intestate about 100 yards in front of the train, though he says he was not in a place of danger. Hence we cannot clearly see that the hypothesis stated was without any support in the evidence, or...