Oxford Lake Line v. Steadham

• Citation: 13 So. 553,101 Ala. 376
• Parties: OXFORD LAKE LINE v. STEADHAM.
• Decision Date: 22 June 1893
• Court: Supreme Court of Alabama

13 So. 553

101 Ala. 376

OXFORD LAKE LINE v. STEADHAM.

Supreme Court of Alabama

June 22, 1893

Appeal from city court of Anniston; B. F. Cassady, Judge.

Action by William Steadham against the Oxford Lake Line to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant's employe. There was judgment for the plaintiff, and defendant appeals. Reversed.

The allegations of negligence, as contained in the first count of the complaint, are as follows: "That on the said _____ day of August, 1891, plaintiff was riding from Oxford eastward in a buggy, drawn by a mule hitched thereto, along the public highway in the town of Oxford, about one-quarter of a mile east of the business block thereof, where the public highway and the Oxford Lake Line run side by side when he [the plaintiff] was overtaken by the engine and cars running on said line; and that, just as they were almost even with, or in seven or eight yards of, plaintiff, the engineer thereof, with gross recklessness and negligence unnecessarily caused the steam to escape from the engine, the sight and noise of which frightened said mule, and caused him to run away with the buggy, and plaintiff was thereby thrown from said buggy and greatly injured; that his collar bone was badly injured, his right arm partly paralyzed, and his spine injured;" for which injuries complainant brings said suit. The allegations of negligence, as contained in the sixth count, after setting up the fact of the defendant's mule becoming frightened and running away, are as follows "That the mule became frightened and started to run owing to the negligence of the defendant's employes in running and managing said cars, causing great damage to plaintiff as aforesaid," etc. The demurrers to this last count of the complaint are substantially as follows: (1) That it does not sufficiently appear that plaintiff was injured by reason of defendant's negligence; (2) that the defendant is not liable for the fright caused plaintiff's mule in the use and running of its cars; (3) that the defendant's negligence, as alleged in the said sixth count, is too remote. These demurrers were overruled.

J. J. Williett, for appellant.

Kelly & Methrin, for appellee.

HARALSON J.

There were originally five counts in the complaint, to which, by amendment, a sixth was added. The defendant demurred to each count, but before the demurrer was passed on the plaintiff amended his complaint by striking out all the counts except the first and sixth, the demurrers to which were overruled, and defendant took issue on them. In the written agreement of appellant's counsel filed in the cause it is admitted that the first count is a good one, and the assignment of error based on its overruling is waived. The averments of negligence in the sixth count are such as have many times been held to be sufficient. Railroad Co. v. Thompson, 62 Ala. 500; Railway Co. v. Lazarus, 88 Ala. 453, 6 South. Rep. 877; Railroad Co. v. Watson, 90 Ala. 41, 7 South. Rep. 813; Stanton v. Railroad Co., 91 Ala. 382, 8 South. Rep. 798; Railway Co. v. Chewning, 93 Ala. 24, 9 South. Rep. 458.

The principles upon which this case rests have been well settled. It is laid down by Pierce in his work on Railroads that "the authority to operate a railroad includes the right to make the noises incident to the movement and working of its engines, as in the escape of steam and rattling of cars and also the right to give the usual and proper admonitions of danger, as in the sounding of whistles and the ringing of bells. It is therefore not liable, while exercising its right in a lawful and reasonable manner, for injuries occasioned by horses, when being driven upon the highway, taking fright at such noises; but if the injury resulting from the fright would not have happened but for a breach of duty by the company, it will be liable for the injury." Pierce, R. R. 348. Rorer states the principles to the same effect, and adds: "But if the acts of the servants occasioning the fright are wanton and...