Savannah & W.R. Co. v. Meadows

• Decision Date: 05 November 1891
• Citation: 95 Ala. 137,10 So. 141
• Parties: SAVANNAH & W. R. CO. v. MEADOWS.
• Court: Alabama Supreme Court

10 So. 141

95 Ala. 137

SAVANNAH & W. R. CO. v. MEADOWS.

Supreme Court of Alabama

November 5, 1891

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge. Reversed.

Action by Fannie Meadows, administratrix, against the Savannah &amp Western Railroad Company, to recover for the alleged negligent killing of plaintiff's husband. Verdict and judgment for plaintiff. Defendant appeals.

The complaint contained four counts. The first count alleged negligence on the part of defendant in failing to blow the whistle, or ring the bell, or give other notice while moving within the city of Opelika, at the time plaintiff's intestate was killed. The second count alleged negligence in failing to give a signal one-fourth of a mile before reaching a public crossing near which plaintiff's intestate was killed. The third count alleged negligence in not ringing the bell or blowing the whistle before entering the cut on a curve within less than one-fourth of a mile from a public crossing, where the engineer could not see one-fourth of a mile in front of him. The fourth count alleged negligence in having no head-light at the time of the accident, and that the engine was being run at a high rate of speed. Demurrers to each of these counts were overruled.

Harrison & Ligon, for appellant.

A & R. B. Barnes, W. J. Samford, and J. M Chilton, for appellee.

COLEMAN J.

This action was brought by Fannie Meadows, administratrix of her deceased husband, Robert Meadows, to recover of the defendant railroad company damages for the alleged unlawful and negligent killing of her husband. We will consider the case upon the hypothesis that the facts are as contended for by the plaintiff. According to this assumption, Robert Meadows was run over and killed by an engine of the defendant within the corporate limits of the city of Opelika, about 8 o'clock P. M. on the 13th of September, 1888. At the time he was struck by the engine he was on his way home, walking up the railroad track of the defendant, and within a cut, about twenty feet deep and some four or five hundred yards in length. Behind him, in the direction from where the engine was coming, there were street crossings and public road crossings, and one not very far from the entrance to the cut; and deceased came to his death after he had gone about 100 or 150 yards in the cut. There were curves in the road, which obstructed the view for less than a fourth of a mile. The engineer did not blow the whistle or ring the bell before reaching the crossing, and did not blow the whistle or ring the bell at short intervals, while moving within or passing through the city, as required by section 1144 of the Code; and defendant's engine had no head-light. The negligence of the defendant in one or more of these requirements, it is contended, caused the death of the decedent. Conceding that the proof of these facts shows negligence on the part of the defendant, does the proof, as admitted to be true, show that the deceased was guilty of such contributory negligence as to deprive the plaintiff of the right to maintain this action? There was no city ordinance regulating the speed of trains running within the corporate limits. The duties imposed upon railroads by section 1144 of the Code were intended to protect persons or property rightly at or approaching public crossings or stopping places of the trains, but have no application to places or conditions not within its provisions. In the case of Railway Co. v. Chewning, (Ala.) 9 South. Rep. 461, quasi

trespasser; or, as we have said, was guilty of negligence contributing to his own injury. In the case of Railroad Co. v. Womack, 84 Ala. 150, 4 South. Rep 618, it was declared to be the settled doctrine in this state, supported by the great weight of authority in England and America, that ordinarily the right of way of a railroad company is its exclusive property. Its free and unobstructed use is essential to the transaction of the business of the company. Mere acquiescence in the use of its right of way does...