Northern Alabama Ry. Co. v. Elliott

• Decision Date: 28 March 1929
• Docket Number: 6 Div. 229.
• Citation: 122 So. 402,219 Ala. 423
• Parties: NORTHERN ALABAMA RY. CO. v. ELLIOTT.
• Court: Alabama Supreme Court

122 So. 402

219 Ala. 423

NORTHERN ALABAMA RY. CO. v. ELLIOTT.

6 Div. 229.

Supreme Court of Alabama

March 28, 1929

Rehearing Denied May 30, 1929.

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action for wrongful death by Icy Doe Elliott, as administratrix of the estate of George Robert Elliott, deceased, against the Northern Alabama Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Bankhead & Bankhead, of Jasper, for appellant.

J. B Powell, of Jasper, for appellee.

SAYRE J.

Plaintiff appellee had judgment in the trial court on allegation that defendant company, acting by and through its servants and employees, had negligently, as alleged in some counts, or wantonly, as alleged in others, caused the death of her intestate. There is probably more than one reversible error shown by the record; but the entire merits of plaintiff's case are so evidently and conclusively involved in those assignments of error, based on the refusal of the general affirmative charges requested by defendant against the several counts of the complaint, that they have been considered in the first place, with result that the rest are no longer of any consequence.

Plaintiff's contention is that her intestate was killed by a passenger train which passed the place where his body was found about 7 o'clock in the evening of March 11, 1927. Intestate's mangled remains were found on the track next morning. Other trains had passed during the night, and defendant's employees in charge of the passenger train aforesaid denied any knowledge of the occurrence; but plaintiff produced a witness who testified to facts which may have authorized an inference in agreement with plaintiff's contention in that particular; and we therefore concede the fact to be that intestate was killed by the train in question, and that the witness to whom we have referred, and who was the sole witness to the circumstances immediately or approximately surrounding intestate at the moment of his death, spoke the truth, the whole truth, and nothing but the truth.

Plaintiff appellee thus states what he conceives to be the only serious propositions involved by this appeal:

"First was the railroad track in such continuous use as a passway by pedestrians that some one was likely to be in a position of danger on the track?

"Second, did defendant's engineer or trainman see the deceased on the railroad track and in a position of peril and fail to exercise all the preventive means at hand to conserve his safety?"

We consider these propositions in the inverse order of their statement by appellee.

As we have stated, in effect, there was but one witness who claimed to know anything of the circumstances in which deceased lost his life. This witness testified that he came upon defendant's track from a path or trail through the woods very near the place where the body of deceased was found next morning. Looking to the north, he saw deceased, about 60 yards away, walking along the track southwardly to the point where witness was, "the light shining on him." Looking to the south, he saw defendant's train approaching at a distance of 100 to 150 yards. All the evidence goes to show that the engine's headlight was burning. Witness stepped off the track, waited until the train passed, then stepped back upon the track and pursued his way to the south. He saw no more of deceased, whose body next morning was found near the path.

At that place deceased was a trespasser on defendant's track. At that place defendant's employees in charge of the train owed deceased no duty...