Nash v. Southern Ry. Co.

• Decision Date: 28 February 1903
• Citation: 136 Ala. 177,33 So. 932
• Parties: NASH v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

33 So. 932

136 Ala. 177

NASH v. SOUTHERN RY. CO.

Supreme Court of Alabama

February 28, 1903

Appeal from City Court of Bessemer; B. C. Jones, Judge.

Action for wrongful death by M. J. Nash, administratrix of James Nash, deceased, against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Pinkney Scott, for appellant.

James Weatherby, for appellee.

HARALSON J.

The assignments of error as to counts of the complaint are to the overruling separately and severally of defendant's demurrers to the first, second, third, fifth, seventh and ninth counts, but it appears there was no judgment of the court on these demurrers. The other assignments of error relate to the action of the court in refusing to allow the plaintiff to amend the complaint by adding an additional count numbered 10, and in giving the general affirmative charge for defendant.

There were three pleas, first, not guilty, second, plea of contributory negligence to each count, to which pleas a demurrer was sustained, and the third, that the plaintiff's intestate was a trespasser or quasi trespasser on the track of defendant at the time of his injury and death, and that the injuries which caused his death were not inflicted wantonly or willfully or intentionally by the defendant or any of its employés. On motion of the plaintiff, as the judgment entry recites, that part of the plea, averring that intestate was a trespasser on the track was quashed, leaving the plea averring a want of willfulness or wantonness in defendant, and issue was joined thereon. The course of the trial shows, that the case was tried on the defenses that defendant was guilty of no negligence; on the plea of contributory negligence of the plaintiff's intestate, and that he was a trespasser on defendant's track, and will be reviewed on the evidence as applicable to these defenses.

In C. & W. R. Co. v. Wood, 86 Ala. 166, 5 So. 464, this court through Stone, C.J., approved the doctrine thus stated by Mr. Beach: "Drunkenness is a wholly self-imposed disability, and in consequence is not to be regarded with that kindness and indulgence which we instinctively concede to blindness, or deafness, or any other physical infirmity. Trespassers go at their peril. This is settled law. Much more is it just to hold that they make themselves drunk at their peril. Disabilities, moreover, of any kind, are a shield, and never a sword. It would be a strange rule of law that regarded a certain course of conduct negligent and blameworthy upon the part of a sober man, but that held the same conduct, on the part of the same man when intoxicated, venial and excusable. Drunkenness will never excuse one for a failure to exercise the measure of care and prudence which is due from a sober man under the same circumstances." Beach on Cont. Negligence, § 492.

Again approving this rule, the court said: "Drunkenness does not exempt a person from the responsibility of contributory negligence. If intoxication renders a person reckless or indifferent to consequences, or inadvertent, or thoughtless and he fails to exercise due care, his failure or omission will not be excused because superinduced by his intoxication. The law exacts from one intoxicated, the same care and precaution to avoid injury as it would from a sober person of ordinary prudence under like circumstances." Johnson v. L. & N. R. Co., 104 Ala. 246, 16 So. 76, 53 Am. St Rep. 39.

The evidence for the plaintiff shows without conflict, that plaintiff's intestate, Nash, entered a passenger coach of the defendant at Bessemer without a ticket, and paid to the conductor his fare to Maylene; that when he got on the train he had a bundle with him, and it contained two bottles of whisky which were unopened, and he was very much intoxicated that he was staggering around and boisterous, using very bad language and was hardly able to stand on his...