Nashville, C. & St. L. Ry. Co. v. Jones

• Decision Date: 12 April 1923
• Docket Number: 7 Div. 386.
• Citation: 96 So. 79,209 Ala. 250
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. JONES.
• Court: Alabama Supreme Court

96 So. 79

209 Ala. 250

NASHVILLE, C. & ST. L. RY. CO. v. JONES.

7 Div. 386.

Supreme Court of Alabama

April 12, 1923

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action for damages by C. A. Jones against the Nashville, Chattanooga & St. Louis Railway Company. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Goodhue & Goodhue, of Gadsden, for appellant.

Samuel A. Lokey, of Gadsden, for appellee.

GARDNER J.

Appellee brought this suit against the appellant to recover damages for the death of his dog, killed by one of the trains of the railway company in the city of Attalla.

Count C rested for recovery upon the negligence of the defendant railway company in running the train in the city of Attalla at an unlawful rate of speed, to wit, 15 or 20 miles per hour, in violation of the city ordinance fixing the rate of speed at 6 miles per hour. The affirmative charge was requested as to this particular count and also upon the whole case.

Counts 1 and 2 fix the place where the dog was killed at a public street crossing where the railway crosses what is known as Line street, while the dog was in the act of crossing the track at this public crossing.

However, the evidence fails to disclose that the dog was at this public street crossing, or was in the act of crossing at this place. When the body of the dog was found it was some 8 or 15 feet from the crossing, as variously estimated. One McClendon, a witness for the plaintiff, testified that the train was running from 10 to 15 miles an hour, but paid no attention to whether the bell was ringing, and did not hear the whistle blow, saying:

"I was about 30 steps from the railroad, and saw the dog immediately after the train passed; it was cut in two. One part of the body was lying on one side of the rail and the other was between the two rails. I did not see the dog when it was killed."

The train that killed the dog was a passenger train of the defendant, and the accident occurred in the morning. The fireman testified in defendant's behalf that he recalled walking to the gangway, and, to use the language of the witness-

"saw something flounch out between the engine and the tank on the left-hand side of the train going toward Guntersville; that is on the Louisville & Nashville side of the railroad, on the fireman's side next to the Louisville & Nashville railroad. The Louisville & Nashville and Nashville Chattanooga & St. Louis run parallel, and the tracks are a distance of something like 8 or 10 feet apart."

He further stated that the usual signals were given, and the bell rung, and that when they reached Attalla he told the engineer something had been hit, and upon looking found some blood on the tank step, just back of the engine, between the tank and the engine. Witness further stated:

"We looked on the pilot and on the drivers and the main road [rod] and I did not see any blood around there or anything. There was no blood on the front part of the engine anywhere, and the only sign was on this step on the side of the engine."

One N. A. Jolly was the engineer in charge of the engine on the morning the dog was killed. He testified as to giving the proper and usual signals at the crossing, and that he saw the dog standing on the Louisville and Nashville tracks; that the dog was standing on the track with his head up looking, "and kinder shaking his head," the witness continuing:

"Then I saw him for 15 or 20 feet; that is, before the front of the engine hid my sight. I never saw him any more. The dog was standing still. The bell on the engine was ringing at the time. The dog did not at any time come in front of my engine. He never moved. He did not move from the time I saw him until I got by him. *** The dog did not get on the track

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