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

• Decision Date: 20 December 1904
• Citation: 142 Ala. 249,37 So. 794
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. HARRIS.
• Court: Alabama Supreme Court

37 So. 794

142 Ala. 249

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

Supreme Court of Alabama

December 20, 1904

Appeal from Circuit Court, Marshall County; J. A. Bilbro, Judge.

Action by Annie Belle Harris, by next friend, George T. Harris against the Nashville, Chattanooga & St. Louis Railway Company, for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

The evidence showed that the plaintiff, who was a little child 19 months old, was struck by an engine belonging to defendant at or near a railroad crossing. There were only two eyewitnesses to the accident, the engineer and the fireman. They testified that they saw the child when about 150 yards from the crossing; that she came on the crossing, and then proceeded up the track 10 or 12 feet towards the engine, and then stopped. The train was going about 18 miles an hour when the child was discovered and about 2 miles an hour when she was struck. There was evidence tending to show that the statutory requirement to ring the bell or blow the whistle at the crossing was not complied with. The engineer and fireman testified that as soon as the child was discovered the track was sanded, brakes applied, the engine reversed, and everything in their power done to stop the engine.

The first count of the complaint, as amended, sought to recover for the "wanton, reckless, or intentional negligence" of the engineer, "who, while operating managing, and controlling said engine on said road with reckless, unwarranted, and dangerous speed, did wantonly and recklessly strike and run over plaintiff at a road crossing on said railroad." The second count, as amended averred, in substance, that the plaintiff, who was a child of tender age, incapable of exercising judgment "for the purpose of crossing over or going beyond defendant's railroad at a public crossing," was struck and injured by the locomotive; the negligence complained of being the failure to ring the bell or blow the whistle at the crossing. The third count averred that the negligence consisted in the failure of the engineer to "use all means within his power, known to skillful engineers, to stop the train, after the discovery of the plaintiff upon the railroad"; the fourth, that the negligence consisted in "failure to keep a proper lookout on approaching the place where the plaintiff was injured"; the fifth, that it consisted in "the failure to have proper brakes and appliances for stopping the train." The sixth count is a rehearsal of the statements of negligence of the other counts, stating them in the alternative. Defendant demurred to first count on the ground that same "joined an action for simple negligence with an action for wanton negligence"; that it sought to recover punitive damages when it did not present a case of wanton, willful, or intentional negligence; and that it failed to show wherein the speed of the train was reckless. The defendant demurred to the other five counts on the ground that they did not show a cause of action, and because the complaint averred that plaintiff was a child incapable of exercising judgment and discretion, and further averred that said child entered upon the railway for the purpose of crossing said track. Defendant also filed separate demurrers to each count. The court overruled the defendant's demurrers, and issue was joined on plea of general issue and the statute of limitations of one year. Defendant requested affirmative charge as to each count which was overruled by the court, except...