Rush v. Central of Georgia Ry. Co.

• Decision Date: 26 March 1931
• Docket Number: 6 Div. 770.
• Parties: RUSH v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

134 So. 619

223 Ala. 119

RUSH v. CENTRAL OF GEORGIA RY. CO.

6 Div. 770.

Supreme Court of Alabama

March 26, 1931

Rehearing Denied May 21, 1931.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action under Homicide Act by J. D. Rush, as administrator of the estate of Charles W. Hall, deceased, against the Central of Georgia Railway Company. From a judgment for defendant plaintiff appeals.

Affirmed.

R. Du Pont Thompson and Walter S. Smith, both of Birmingham, for appellant.

Nesbit & Sadler, of Birmingham, for appellee.

BROWN J.

Counts 1, A. B. C. D. H. and G, ascribing the death of plaintiff's intestate to "the negligent and careless" conduct of defendant's agents and servants "while engaged in running an engine to which was attached a train of cars," placing said intestate at the time of his injury "at a point near First Avenue," and "at or near where the defendant's said railroad crosses First Avenue," were subject to the objection when these averments are construed most strongly against the pleader, that they showed said intestate to be a trespasser, to whom the defendant owed no duty other than not to negligently injure him after his peril was discovered by the agent or servant in charge of the locomotive, or not to willfully or wantonly injure him; and the demurrers thereto were properly sustained. Western Ry. of Alabama v. Madison, 16 Ala. App. 588, 80 So. 162; Southern Ry. Co. v. Stewart, 179 Ala. 304, 60 So. 927.

Moreover, the complaint on which the case was tried embodied counts for simple negligence, subsequent negligence and wantonness, and the assignments of error in respect to the counts eliminated on demurrer are clearly without merit.

In the early part of the afternoon of March 28, 1929, as the undisputed evidence shows, plaintiff's intestate, Charles W. Hall, drove his car to the filling station of one W. P. Lightfoot, located south of First avenue near where defendant's railroad tracks crossed said avenue, to have the radiator drained and refilled. Lightfoot, who was eating his lunch when Hall drove up to the filling station, opened the valve to the radiator to let out the water, and, while the radiator was draining, went back into the building to finish his lunch, leaving Hall standing near the automobile. Immediately after Lightfoot returned to his lunch, he heard the defendant's freight train, consisting of the locomotive and fifty-five cars, and the caboose, approaching from the southeast. After the locomotive and a considerable portion of the train, if not all of it, passed, Lightfoot, after a lapse of from five to ten minutes, returned to the automobile to finish draining and filling the radiator, and then noticed that Mr. Hall had disappeared. On looking to the southeast, the direction from which the train had approached, he discovered Hall's body in the mouth of the cut on the right of way, with the head, a portion of which had been cut away or mashed off, by the wheels, on the end of the cross-ties, and the feet extending out towards the embankment.

The point at which the body was discovered was from 150 to 200 feet southeast of the southern boundary of First avenue, and about 30 feet from the mouth of the cut.

No one saw deceased, so far as appears, when he came in contact with the train. The witness Lightfoot saw him last standing by the automobile immediately before the witness went to finish his lunch. The engineer testified that a person, whom he identified from his description as Hall, was standing at the filling station near the automobile with his arms folded as the locomotive passed the filling station....