Memphis & C.R. Co. v. Martin

• Decision Date: 12 January 1898
• Citation: 117 Ala. 367,23 So. 231
• Court: Alabama Supreme Court
• Parties: MEMPHIS & C. R. CO. v. MARTIN.[1]

23 So. 231

117 Ala. 367

MEMPHIS & C. R. CO. v. MARTIN.^[1]

Supreme Court of Alabama

January 12, 1898

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Action by George W. Martin, as administrator of the estate of Nancy Martin, deceased, against the Memphis & Charleston Railroad Company, to recover damages for the death of his intestate. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought by the appellee, as administrator of Nancy Martin, deceased, against the appellant, the Memphis Charleston Railroad Company, to recover damages for the alleged negligent killing by the defendant of the plaintiff's intestate. The complaint as amended contained five counts. These counts, after alleging the operation by the defendant of a railroad in the state of Alabama, and the fact that the plaintiff's intestate was run over and killed by one of the defendant's engines, while she was crossing the track of the defendant's road at a public road crossing, within the limits of the town of Madison contained the following averments of negligence: (1) "And the plaintiff avers that the striking, running over, and killing of his intestate by the defendant was caused by the negligence, omission, and carelessness of the defendant, in this: That the servants of the defendant in charge of defendant's said train of cars wholly failed and negligently omitted, as required by law, to blow the whistle or ring the bell of the engine while entering into moving within, or passing through, the village or town of Madison, and by reason of said negligence, omission, and carelessness on the part of the servants of the defendant and without fault of plaintiff's intestate plaintiff's intestate was struck and run over by one of defendant's engines, and died from the injuries received." (2) "Said defendant company did, on the 8th day of April, 1891, in the management, conduct, and running of one of its freight trains by its servants employés, and operatives, wantonly and recklessly propel and rush one of its engines, drawing a long and heavy freight train, on its track over the public crossing or passway, where people are wont to cross and recross with great frequency and in great numbers, within the limits of the incorporated town or village of Madison, in the county of Madison, state of Alabama, at a rate of speed of not less than twenty-five miles per hour, or about twenty-five feet per second, by which and from which reckless, wanton, and dangerous conduct of defendant's servants, employés, and operatives, in propelling said engine and train of freight cars at that high and dangerous rate of speed, plaintiff's intestate, who had no connection with defendant's company as an employé or passenger, was run over and killed by defendant's engine and train of cars, while she was crossing the public road crossing or passway over defendant's track, the same being within the limits of the incorporated town or village of Madison, county of Madison, state of Alabama, without fault or proper caution on the part of plaintiff's intestate." (3) "Plaintiff's intestate attempted to cross defendant's track at the public crossing or passway in the incorporated town or village of Madison, where persons crossed and recrossed in great numbers; and, while so attempting to cross defendant's track, plaintiff's intestate was struck, run over, and killed by an engine drawing a heavy and long train of freight cars on defendant's track, that was being propelled and rushed by the servants, employés, and operatives of defendant's company over the public crossing or passway in the limits of the incorporated town of Madison at a wanton and reckless rate of speed of not less than twenty-five miles per hour, at a point and place where defendant's employés and servants in charge of said train knew that persons were frequently crossing in the pursuit of their daily business, which caused the injury proximately and directly to plaintiff's intestate, from which she died." (4) "That on the 8th day of April, 1891, the servants, employés, and operatives of defendant company, in charge of an engine drawing a heavy train of freight cars, propelled and rushed said engine and train of freight cars over defendant's track in a wanton and reckless manner, and at a rate of speed of not less than twenty-five miles an hour, on approaching the depot in the town of Madison, county of Madison, state of Alabama, which is a regular station or stopping place on defendant's line of road; and plaintiff avers that his intestate, who was in no manner connected with defendant's company as employé, passenger, or otherwise, approached the track of the defendant where the same crosses the public crossing or passway in the incorporated town or village of Madison, in the county of Madison, state of Alabama, and where persons are wont to cross and recross in great numbers and frequently, which said public crossing or passway is about forty feet from the platform of defendant's depot; and, after stopping to look and hear for an approaching train, and not hearing or seeing a train, plaintiff's intestate attempted to cross defendant's track at said point, and, while so attempting to cross and making every effort to extricate herself from her perilous position, plaintiff's intestate was struck and run over and killed by defendant's engine and train of cars, by reason of the reckless rate of speed with which the engine and train of cars was approaching and passing said depot on said defendant's line of road." The fifth count of the complaint was as follows: (5) "And the plaintiff further claims of the defendant the sum of thirty thousand dollars, for that said defendants, on the 8th day of April, 1891, while engaged by its agents, employés, and servants in operating and running its line of road, did negligently, carelessly, recklessly, and wantonly run over and kill plaintiff's intestate with one of its engines, when running at a rate of speed of not less than twenty-five miles an hour, while plaintiff's intestate, who had no relation or connection with defendant's company, and without fault on her part, was crossing the defendant's track or road at a public crossing or passway where people were wont to cross frequently and in great numbers in the limits of the incorporated town or village of Madison, in the county of Madison, state of Alabama, which reckless and wanton rate of speed of defendant's engine and train of cars was alone the cause of the death of plaintiff's intestate."

The defendant demurred to the second count of the complaint, upon the following grounds: (1) It fails to show or allege any facts constituting wanton negligence. (2) It shows on its face that plaintiff's intestate was guilty of contributory negligence. (3) It shows that plaintiff's intestate was a trespasser on defendant's track, and fails to show that defendant's employés failed to use all means within their power to stop said train after her peril was discovered, or ought to have been discovered, and fails to show that the presence of said intestate on the track or crossing was known to the defendant's employés in charge of the train, or that such employés had notice or knowledge that plaintiff's intestate was or might attempt to cross said track in front of the rapidly moving train. (4) "Because no rate of speed alone, however reckless unwarranted, or dangerous it may be, constitutes negligence per se, nor such wantonness as is the legal equivalent of willful or intentional wrong, unless there is an ordinance regulating such speed, and unless such speed is maintained over a crossing in a thickly populated district, neither of which facts is alleged in said count." To the third count the defendant demurred upon the following ground: It shows that the intestate was guilty of negligence which proximately contributed to her injuries. To the fifth count the defendant demurred upon the following grounds: (1) "Because said count seeks to recover of this defendant for its alleged wanton and recklessly negligent conduct, and fails to allege or show any facts constituting wanton and recklessly negligent conduct." (2) "Because said count seeks to hold defendant liable for its alleged wanton and recklessly negligent conduct, and alleges, as grounds for such recovery, facts or omissions of duty which constitute simple negligence only." (3) "Because said count is repugnant and inconsistent, in this: In one portion it charges this defendant with omission of statutory duties, and with running said train at a reckless, unwarranted, and dangerous rate of speed (which omission of duty and rate of speed constitute simple negligence only), and yet in another portion of said count plaintiff denominates said omission of duty and rate of speed 'wanton and recklessly negligent conduct on the part of defendant."' (4) "Because said count joins an action for simple negligence only with an action for wanton negligence." These demurrers were each overruled, and the defendant duly excepted. The defendant pleaded the general issue, and the following special pleas: (2) "For further plea and answer to counts numbered 1, 3, 4, and 5, and to each of said counts separately, defendant says that plaintiff's intestate was herself guilty of negligence, which proximately contributed to cause her death, in this: that she attempted to cross said track in front of said moving train, without stopping to look or listen for the approach of trains on said track, and, by reason of her own negligence in this respect, was struck and killed." (3) "For further plea and answer to counts numbered 1, 3, 4, and 5, and to each of said counts separately, [defendant says that] before attempting to cross the track of this defendant at said road crossing at the time mentioned in...