Nashville, C. & St. L. Ry. v. Cox

• Decision Date: 31 October 1922
• Docket Number: 8 Div. 979.
• Parties: NASHVILLE, C. & ST. L. RY. v. COX.
• Court: Alabama Court of Appeals

94 So. 247

18 Ala.App. 672

NASHVILLE, C. & ST. L. RY. v. COX.

8 Div. 979.

Court of Appeals of Alabama

October 31, 1922

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action for damages by Boyd Cox against the Nashville, Chattanooga &amp St. Louis Railway. From a judgment for plaintiff, defendant appeals. Affirmed.

Street & Bradford, of Guntersville, for appellant.

J. A. Lusk & Son, of Guntersville, for appellee.

SAMFORD J.

The complaint, as originally filed, was jointly against the defendant corporation and two of its employees in charge of defendant's locomotive at the time of the injury. To the single count, defendant demurred assigning six grounds. Five of these grounds were eliminated by an amendment to the complaint striking out the two employees as parties defendant, leaving as a sole ground of demurrer, that the place of the injury was not sufficiently described. As to this, the complaint alleges that the injury occurred on one of the streets of Guntersville, and within the corporate limits of said town, while plaintiff was crossing defendant's track. The complaint we think is sufficiently clear in its allegation that the place of injury was at a street crossing in the town of Guntersville. The cases of Jolley v. So. R. Co., 197 Ala. 60, 72 So. 382, and A. G. S. R. Co. v. Fulton, 144 Ala. 332, 39 So. 282 are not in point. At the conclusion of the evidence plaintiff amended his complaint by striking out the employees named in the complaint, leaving as sole defendant this defendant. Motion was then and there made for a discontinuance as to this defendant, which motion was overruled. In this the trial court did not commit error. The right of amendment is provided by statute. Acts 1915, p. 605; Crawford v Mills, 202 Ala. 62, 79 So. 456; Patterson Lbr. Co. v. Patrick, 202 Ala. 363, 80 So. 445; Wright v. McCord, 205 Ala. 122, 88 So. 150.

Charge B, given at the request of plaintiff, was a fair statement of the rule as to burden of proof, in conformity to sections 5473 and 5476 of the Code of 1907, it having been shown without dispute that the injury occurred while defendant's locomotive was moving within a village, town, or city. The headnote No. 5 in W. Ry. of Ala. v. McPherson, 146 Ala. 427, is misleading and is not borne out by the opinion. The opinion in L. & N. R. Co. v. Christian, etc., Co., 150 Ala. 390, 3d headnote, 43 So. 723, is based upon an entirely different charge.

It is insisted by appellant that the trial court should have given the general affirmative charge as requested by defendant because the plaintiff failed to stop, look, and listen at a place where he could have seen the approach of defendant's locomotive before going on the defendant's track. The doctrine of "stop, look, and listen" is firmly established in this state, and where a person fails to observe such doctrine and is injured while crossing a railroad track, he is guilty of...