Pollard v. Crowder
| Decision Date | 11 January 1940 |
| Docket Number | 5 Div. 300. |
| Citation | 194 So. 161,239 Ala. 112 |
| Parties | POLLARD ET AL. v. CROWDER. |
| Court | Alabama Supreme Court |
Rehearing Denied March 7, 1940.
Appeal from Circuit Court, Chambers County; Albert Hooton, Judge.
Action under Homicide Statute by Henrietta Crowder, as administratrix of the estate of A. L. Hallman, deceased against H. D. Pollard, as receiver of the Central of Georgia Railway Company, Coleman Baldwin, and John Hart. From a judgment for plaintiff, defendants appeal.
Affirmed.
Jacob A. Walker, of Opelika, and C. S. Moon and Will O. Walton both of LaFayette, for appellants.
R. C Wallace, of LaFayette, and D. G. Ewing and Clark & Trawick, all of Birmingham, for appellee.
This is an action against the receiver of the Central of Georgia Railway Co. and some of its servants for the wrongful death of the plaintiff's intestate. The trial court eliminated simple, initial negligence upon the idea that the plaintiff's intestate was guilty of contributory negligence. The case was therefore tried on the question of subsequent negligence on the part of the defendants and the subsequent or concurrent negligence of plaintiff's intestate, the issue being whether or not the servants of the railway were guilty of negligence after a discovery of the intestate's peril or whether or not the intestate continued his attempt to cross the track after the discovery that the car was approaching the said crossing.
It appears that the railroad car that collided with or struck the intestate's truck was being pushed by the engine and that said car may have been an obstruction to the view of the enginemen, and a flagman or brakeman was stationed on top of said car as a lookout and as a means of warning to the enginemen. The said brakeman, John Hart, alias Snow detailed the movements of the intestate from the time he first saw him until the collision, and the jury could well infer that the intestate never saw or heard the train from the time he got in his truck and reached the track. It was also a question for the jury as to whether this witness gave timely signals to the engineer after the discovery that the intestate was not aware of the approach of the train. He testified that he commenced hollering to the engineer, but he, a question for the jury, must not have relied on the carriage of his voice alone and could have probably given warning by flagging signals also, and this evidence alone was sufficient to carry the case to the jury and justify the refusal of the general charge for the defendants.
It was also a question for the jury as to whether or not the engineer did all proper and necessary things to avoid the injury after the fireman warned him of the danger. He may have applied the brakes, but it was open for the jury to find that a sharp blast of the whistle then and there may have warned the intestate. There was a conflict in the evidence as to the blowing of the whistle. Southern Railway Co. v. Sherrill, 232 Ala. 184, 167 So. 731, and cases there cited.
The first assignment of error argued in brief of counsel is the action of the court in...
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Louisville & N. R. Co. v. Martin
...plaintiff lays much stress upon Pollard v. Crowder, 239 Ala. 112, 194 So. 161. Counsel arguing here appears also to have been counsel in the Crowder case, yet original consideration of this cause here counsel for plaintiff made no mention whatever of the Crowder case in answering defendant'......
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Atlantic Coast Line R. Co. v. Griffith
...applied the brakes, but it was open for the jury to find that a sharp blast of the whistle' may have warned plaintiff. Pollard v. Crowder, 239 Ala. 112, 194 So. 161. See, also, Gulf M. & O. Railway Company v. Sims, supra, and cases there cited; Southern Railway Company v. Hughes, 267 Ala. 4......
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Smith v. Goss
...Alabama of 1940 (Recompiled 1958). Here the charge as requested was directed to both appellants and was properly refused. Pollard v. Crowder, 239 Ala. 112, 194 So. 161; Jefferson County Building & Loan Association v. Weaver, 25 Ala.App. 189, 143 So. Appellants' contention in their Assignmen......
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Southern Ry. Co. v. Terry
...proper to avoid the injury, it was open for the jury to find that a sharp blast of the whistle may have warned Gibson. Pollard v. Crowder, 239 Ala. 112, 194 So. 161. In the very recent case of Southern Ry. Co. v. Hughes, Ala., 103 So.2d 324, 327, Livingston, C. J., 'If the plaintiff gave in......