Northern Alabama Ry. Co. v. Guttery

• Citation: 189 Ala. 604,66 So. 580
• Decision Date: 07 November 1914
• Docket Number: 689
• Parties: NORTHERN ALABAMA RY. CO. v. GUTTERY.
• Court: Supreme Court of Alabama

66 So. 580

189 Ala. 604

NORTHERN ALABAMA RY. CO. v. GUTTERY.

No. 689

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by W.L. Guttery, as administrator of Baxter Guttery deceased, against the Northern Alabama Railway Company for damages under the homicide statute for the death of decedent. From a judgment for plaintiff, defendant appeals. Affirmed.

The following are the counts referred to in the opinion:

"(5) The plaintiff *** claims of defendant *** the sum of *** as damages for that heretofore, to wit, on March 10 1912, defendant was engaged in operating a line of railroads in and through the city of Jasper *** and that defendant allowed and permitted the Mobile & Ohio Railroad Company to use and to run and operate trains over its said railroad lines jointly with defendant; that on the above date plaintiff's intestate was walking along, or was on the railroad track of the defendant in the city of Jasper, and was run over and killed by an engine to which was attached a train of cars being operated by said Mobile & Ohio Railroad Company, on said track by permission and consent of defendant. And plaintiff alleges that the engineer or other person in charge and control of said engine, while acting within the line and scope of his employment as such engineer or other servant, wantonly, willfully, or intentionally ran said engine over plaintiff's intestate at the time and place aforesaid, proximately causing the injuries herein complained of."

(6) Same as 5 in its statement of facts, and adds the following:

"And plaintiff alleges that while his said intestate was on said track as aforesaid and in front of said train, which was rapidly approaching him, he was in a situation of peril which the engineer or other person in charge and control of said engine was conscious of and knew in time to have prevented the injury to plaintiff's intestate, but that said engineer or other person in charge or control of said engine, after he knew and became conscious of the perilous situation in which plaintiff's intestate was at the time and acting within the line and scope of his employment negligently failed to exercise due care and diligence to avoid the said injury to plaintiff's said intestate, as a proximate consequence of which plaintiff's intestate was killed as aforesaid."

Plea 4 was as follows:

"That on June 15, 1908, defendant entered into an agreement or contract of lease with the Mobile & Ohio Railroad Company by which the Mobile & Ohio Railroad Company leased and acquired from defendant the right to operate trains over the track of defendant from Parrish to Haleyville in the state of Alabama, and defendant avers that the railroad track of defendant and the Mobile & Ohio Railroad Company, as mentioned in said lease, are connected with each other, and that under and by virtue of said lease the Mobile & Ohio Railroad Company has the right to operate and does operate its trains over the lines of this defendant from said Parrish to said Haleyville, and that the injuries complained of in said complaint and each count thereof occurred on that portion of the track of defendant over which the Mobile &amp Ohio Railroad Company has leased from defendant the right to operate its trains, and that the engine and cars which are alleged to have caused the injury and damage as set out in the complaint were not the engine or cars of this defendant, but were the engine or cars of the Mobile & Ohio Railroad Company, and were being operated at the time of the accident by the servants of the said Mobile & Ohio Railroad Company, under said contract for the exclusive benefit of the said Mobile & Ohio Railroad Company, and were not being operated by this defendant, or by the servants or agent of this defendant."

The following are assignments of error 6 and 7:

"(6) The lower court erred in sustaining the objections of the appellee to appellant's question to witness O'Rear: 'This place you speak of as the hall, near the Frisco depot, was that another blind tiger?'

"(7) The question to McAuley by appellee: 'I will ask you whether or not whisky was sold at that poolroom.' "

The excerpt to the oral charge in assignment 8 is as follows:

"If at the point, and about the time the people frequented the tracks by use, and that these facts were known to the operator of the train, then the operators of the train shall keep the train in control at that place, so that after the discovery of the party on the track, they could avoid injuring him."

The following is charge 30, refused to defendant:

"The court charges you that, in order for you to find a verdict for plaintiff, you must be reasonably satisfied from all the evidence in the case that the engineer or other person in charge of the train which struck plaintiff's intestate, if he believed he was struck by a train, must have had actual knowledge of his position of peril, and must have had the means at hand to prevent the injuries to or death of plaintiff's intestate, and must have consciously failed to use such means at hand."

The court gave charge 34 as follows:

"Plaintiff's intestate in this case was a trespasser upon defendant's track at the time of his death, and was at a place where neither defendants nor its agents were under duty to keep a lookout for him; and the mere fact that the track at that point was frequently used by pedestrians is not in itself sufficient to show that the engineer or other agent in charge of the train was evidential presumption that such agents of defendant knew that some person was likely to be on the track at the time and place when intestate was killed."

The bill of exceptions recites that, after the jury had retired to their room, they returned to the courtroom and asked the court to explain to them charge 34, given at the request of defendant. The court said:

"That is to say, that any fact in and of itself is not sufficient; but the court left to the jury the proposition whether or not the agents or servants did hit him, in connection with that charge--that is to say, the testimony tends to show that the headlight was working well; that the engineer and other party in charge of the engine were looking ahead along the track, and the evidence showed that they could see along the track from and after they turned the point of the curve, for instance, from 50 to 200 feet, straight along the track, and the evidence showed that this man was killed on the track. I leave it to you to say whether or not the man was on the track before the engine reached him; I leave it for you to say if the headlight was working, throwing the light in front of the engine, and the engineer and fireman were looking ahead, and if the man was on the track, and if there was no obstruction between him and the engine, although the engineer and fireman and brakeman said they were looking ahead and did not see him, if he was in fact there. This is a question of fact for you to decide, whether or not from all the circumstances they did see him. The fact that people crossed there frequently is not, in and of itself, sufficient to show that they did see him; the fact that he was there on the track is not sufficient to say that they saw him. But, taking all the facts and circumstances in the case, it is for you, gentlemen, to say whether or not they did in fact see him, in connection with all the rest of the charges I gave you. To illustrate: Any single fact in the case is taken and considered along with all the other facts and circumstances in the case in order to arrive at the truth of the transaction, and that is what we mean by one thing not being sufficient. You should take all the facts and circumstances, and put them together, and see what the whole truth is in arriving at a verdict."

A.G. &amp E.D. Smith, of Birmingham, and Bankhead &...