Manley v. Birmingham Ry., Light & Power Co.

• Decision Date: 14 January 1915
• Docket Number: 935
• Citation: 68 So. 60,191 Ala. 531
• Parties: MANLEY v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

68 So. 60

191 Ala. 531

MANLEY v. BIRMINGHAM RY., LIGHT & POWER CO.

No. 935

Supreme Court of Alabama

January 14, 1915

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Louise Manley, as administratrix, against the Birmingham Railway, Light & Power Company for the death of her intestate, John T. Manley. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The first count declares on subsequent negligence in that the motorman failed to use all means at his command to prevent the cars from running against plaintiff's intestate after becoming aware of its peril. The second count is for wanton misconduct on the part of the motorman in charge of the operation of the car in that, while acting within the line and scope of his employment, he wantonly ran said car over upon, or against plaintiff's said intestate, and killed him. The following charges were given for defendant:

(1) If you believe from the evidence that after the said car left Fairview up until the accident it was being carefully and properly operated, and if you are further reasonably satisfied from the evidence that intestate was walking west on the south track in a place of safety from the car which struck him, and that he suddenly stepped from the south track to the north track so close to the approaching car that it could not be stopped by the use of all the means at hand before striking him, and that its speed should not be sufficiently checked by the use of all the means at hand to enable intestate to leave the track in safety, then you must find for defendant.

(3) If you are reasonably satisfied from the evidence in this case after a consideration of all the evidence that the sole proximate cause of intestate's death was his going upon the track in such close and dangerous proximity to the car which struck him that his injury and death could not be prevented by the use of all the means at hand for stopping and controlling said car, then you must find for defendant.

(4) If you believe from the evidence that the motorman in charge of a car, as he approached intestate, was in the exercise of due care, and that as soon as he discovered the peril of Mr. Manley being struck by said car he used all the means at his command to prevent his car from striking Mr Manley, then you must find for defendant.

(5) If you are reasonably satisfied from the evidence in this case that the motorman did not wantonly run his said car upon, over, or against Mr. Manley, and that as soon as the motorman became aware of Mr. Manley's peril he used all the means at his command to avoid injuring him, then you must find a verdict for defendant.

(6) Mere error of judgment on the part of a motorman operating a street car made in good faith as to whether a pedestrian walking on or dangerously near the railroad track is in danger of being struck by the car does not amount to such negligence or misconduct as alleged in plaintiff's complaint.

Charge 1 refused to defendant is as follows:

If you believe from the evidence in this case that the motorman in charge of the local train which ran over Mr Manley was standing up in its proper position in the front end of the car with his face looking ahead from the time his train left Fairview until the accident occurred, you are allowed to find from this circumstance that, as a matter of fact, the said motorman saw the perilous position of Mr Manley when his train was further away from Manley than it was when said motorman started to blow his whistle, provided you find from the evidence that the track from Fairview to the point of the accident was straight, and that there was nothing between these points to obstruct his view, and provided you further find from the evidence that the said Manley got into the perilous position at a point on said track nearer to Fairview than he was at the time the motorman sounded his whistle.

Perdue & Drake, of Birmingham, for appellant.

Tillman, Bradley & Morrow and Charles E. Rice, all of Birmingham, for appellee.

ANDERSON C.J.

It is a well-established rule of law, uniformly adhered to by this court, that when an agent or servant in control of an engine or car discovers a person in peril upon the track of a railroad, he must resort to all preventive means known to skilled persons engaged in the management and control of trains, engines, cars, etc., to avert injury. After discovering the peril, he must not only resort to all means at hand to stop or check the train or car, but must resort to all other means known to prudent and skilled trainmen to avert the injury, and which would, under some circumstances include the duty of giving a warning as to the approach or the train. It may sometimes happen that a person is on a...