Louisville & N. R. Co. v. Bogue

CourtSupreme Court of Alabama
Writing for the CourtSOMERVILLE, J.
Citation177 Ala. 349,58 So. 392
PartiesLOUISVILLE & N. R. R. CO. v. BOGUE.
Decision Date11 April 1912

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. [58 So. 393]

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 [58 So. 394] 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...

To continue reading

Request your trial
26 practice notes
  • Cofer v. Ensor
    • United States
    • Supreme Court of Alabama
    • April 12, 1985
    ...of the father, where the suit is by the father personally or by an administrator.... It was said in Louisville & Nashville R.R. v. Bogue, 177 Ala. 349, 360, 58 So. 392, 393, 396: 'As now reconstructed in the new Code, it (now substantially as in section 119, supra) [§ 391], is evidently des......
  • Addington v. State, 6 Div. 16
    • United States
    • Alabama Court of Appeals
    • September 7, 1916
    ...a whole, contains a correct statement of the law of the case. Decatur Co. v. Mehaffey, 128 Ala. 242, 29 So. 646; L. & N.R.R. Co. v. Bogue, 177 Ala. 349, 58 So. 392. If a phrase, or any part of a charge, contains an elliptical form of expression, or is ambiguous or likely to mislead, it is b......
  • Liberty Nat. Life Ins. Co. v. Weldon
    • United States
    • Supreme Court of Alabama
    • November 14, 1957
    ...as the jury may assess.' The damages are entirely punitive, imposed for the preservation of human life. Louisville & N. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392. As the wording of the statute indicates, the amount of damages rests largely in the discretion of the jury. However, this discre......
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...Gulf States Steel Co. v. Jones, 204 Ala. 48, 49, 85 So. 264. So, also, under Code, § 2485, since the decision in L. & N. R. Co. v. Bogue, 177 Ala. 349, 360, 58 So. 392, the damages are punitive (Gulf States Steel Co. v. Justice, 204 Ala. 577, 583, 87 So. 211; Allen v. Alger-Sullivan Lbr. Co......
  • Request a trial to view additional results
26 cases
  • Cofer v. Ensor
    • United States
    • Supreme Court of Alabama
    • April 12, 1985
    ...of the father, where the suit is by the father personally or by an administrator.... It was said in Louisville & Nashville R.R. v. Bogue, 177 Ala. 349, 360, 58 So. 392, 393, 396: 'As now reconstructed in the new Code, it (now substantially as in section 119, supra) [§ 391], is evidently des......
  • Addington v. State, 6 Div. 16
    • United States
    • Alabama Court of Appeals
    • September 7, 1916
    ...a whole, contains a correct statement of the law of the case. Decatur Co. v. Mehaffey, 128 Ala. 242, 29 So. 646; L. & N.R.R. Co. v. Bogue, 177 Ala. 349, 58 So. 392. If a phrase, or any part of a charge, contains an elliptical form of expression, or is ambiguous or likely to mislead, it is b......
  • Liberty Nat. Life Ins. Co. v. Weldon
    • United States
    • Supreme Court of Alabama
    • November 14, 1957
    ...as the jury may assess.' The damages are entirely punitive, imposed for the preservation of human life. Louisville & N. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392. As the wording of the statute indicates, the amount of damages rests largely in the discretion of the jury. However, this discre......
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...Gulf States Steel Co. v. Jones, 204 Ala. 48, 49, 85 So. 264. So, also, under Code, § 2485, since the decision in L. & N. R. Co. v. Bogue, 177 Ala. 349, 360, 58 So. 392, the damages are punitive (Gulf States Steel Co. v. Justice, 204 Ala. 577, 583, 87 So. 211; Allen v. Alger-Sullivan Lbr. Co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT