Neyman v. Alabama Great Southern R. Co.

• Decision Date: 01 June 1911
• Citation: 55 So. 509,172 Ala. 606
• Parties: NEYMAN v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

55 So. 509

172 Ala. 606

NEYMAN v. ALABAMA GREAT SOUTHERN R. CO.

Supreme Court of Alabama

June 1, 1911

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Ben H. Neyman, as administrator of the estate of B. F Neyman, against the Alabama Great Southern Railroad Company. From a judgment granting defendant's motion for a new trial, plaintiff appeals. Affirmed.

Pinkney Scott, for appellant.

A. G. &amp E. D. Smith, for appellee.

SOMERVILLE J.

In the lower court the plaintiff (appellant) recovered a judgment against the defendant (appellee) for $3,000 for wrongfully causing the death of B. F. Neyman, and on motion of the defendant the court set aside the verdict of the jury and granted a new trial. From this action of the trial court plaintiff prosecutes this appeal, and assigns error thereon.

It does not appear upon what ground or grounds the motion for a new trial was sustained, but the grounds relied on included alleged errors of the court in overruling defendant's demurrers to counts 4 and 12 of the complaint, and in declining to give the general affirmative charge for the defendant, as well as the failure of the verdict to respond to the law and the evidence. The trial was had on counts 1 3, 4, and 12 of the complaint. Counts 1 and 3 declare on simple negligence resulting in the death of plaintiff's intestate, alleging that he was a passenger when killed; while counts 4 and 12 are for willful, wanton, or intentional killing, without averring that deceased was a passenger

The record shows the following material facts as to which there is no conflict in the evidence: The deceased was riding on defendant's local freight train, on which he had secured passage by material false representations to the conductor as to a pass on which he claimed to be riding. This train was proceeding towards Birmingham, the deceased riding in the caboose at the rear end of the train. Following behind this local, and going in the same direction, was an "extra" freight train, which was pulled by a reversed engine. At the point of the accident the engine of the local had broken down on one side, and the train had been halted and delayed thereby. During this delay the extra train came up and was halted, and its engineer, leaving his own engine in charge of his fireman, one Ed Stanton, went ahead to the disabled engine to assist in getting it started off. After it had been repaired, it was necessary to push it off in starting, and on a signal to Ed Stanton he brought the extra up, engine and all, for that purpose. It was not necessary to couple the extra engine onto the caboose of the local in order to push it off, but George Storey, a brakeman, without instructions from any one, so arranged the coupling apparatus that, when the engine struck the caboose, it coupled on, which Stanton could not see on account of the tank of his engine being in front of it. After the pushing off was accomplished, he checked the movement of his engine, and then discovered that it was coupled to the caboose. Presumably the resulting pull back broke the local train in two, as it was in fact broken several cars ahead of the caboose. Stanton then received a signal to "give slack," so that his engine could be uncoupled. The cars of the local were equipped with air brakes, which operated automatically upon the breaking off of these cars, in railroad parlance, throwing the cars "in emergency," and holding them securely. Stanton obeyed the signal to give slack by moving his train forward, and, pushing against the cars thus set fast "in emergency," these cars gave way under the heavy pressure and crumpled in from the ends, thereby killing plaintiff's intestate in the caboose. As soon as Stanton observed what was happening, he stopped his train as quickly as he could. Stanton did not know that his engine had been coupled onto the caboose, he did not know that the "local" train had broken in two, and he did not know, nor have any reason to believe, that the deceased or any one else was in the caboose during the operations above narrated.

1. Appellant assigns for error a great number of rulings made by the trial court on the original trial. As none of these affect the measure of damages, nor the amount of the jury's verdict, which was in favor of plaintiff, it is manifest that, even if erroneous and properly assigned on this appeal, they were not prejudicial to plaintiff.

2. Plaintiff's intestate by falsely representing to the conductor of the local freight train that he was riding on an employé's pass, and thereby fraudulently securing free transportation, became a trespasser instead of a passenger and on well-settled principles of law the defendant carrier could...