Shepard v. Louisville & N.R. Co.

• Decision Date: 15 November 1917
• Docket Number: 3 Div. 267
• Citation: 200 Ala. 524,76 So. 850
• Court: Alabama Supreme Court
• Parties: SHEPARD v. LOUISVILLE & N.R. CO.

76 So. 850

200 Ala. 524

SHEPARD v. LOUISVILLE & N.R. CO.

3 Div. 267

Supreme Court of Alabama

November 15, 1917

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by Willie B. Shepard against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appealed. Affirmed.

Evans &amp Friedman, of Montgomery, for appellant.

Goodwyn & McIntyre, of Montgomery, for appellee.

THOMAS J.

The case was tried on count 7, which charged a wanton injury inflicted in manner specifically alleged. The only assignment of error challenges the giving of the affirmative charge at defendant's request in writing.

To substantiate the charge of wantonness, it must be shown that the defendant, acting through his servants or agents, was conscious of the conduct that caused the injury, and conscious, from the knowledge of existing conditions "that injury would likely or probably result from the conduct," and that, "with reckless indifference to consequences," such agents or servants "conscientiously and intentionally did the wrongful act or omitted some known duty, which produced the injurious result" for which the suit is brought. B.R.L. & P Co. v. Cockrum, 179 Ala. 372, 381, 60 So. 304; Ellis v. Birmingham Waterworks, 187 Ala. 552, 555, 65 So. 805; M. & C.R.R. Co. v. Martin's Adm'r, 117 Ala 367, 382, 23 So. 231; Burson v. L. & N.R.R. Co., 116 Ala. 198, 22 So. 457; B.R. & E. Co. v. Bowers, 110 Ala. 328, 20 So. 345; B.R.L. & P. Co. v. Brown, 150 Ala. 327, 331, 43 So. 342; M.J. & K.C.R.R. Co. v. Smith, 153 Ala. 127, 131, 45 So. 57, 127 Am.St.Rep. 22; L. & N.R.R. Co. v. Calvert, 170 Ala. 565, 54 So. 184; B.R.L. & P. Co. v. Drennen, 175 Ala. 338, 346, 57 So. 876; Adler v. Martin, 179 Ala. 97, 59 So. 597; Peters v. Southern Railway Co., 135 Ala. 537, 33 So. 332. In the Drennen Case, supra, this court said:

"Where there is no evidence of knowledge on the part of the engineer of the presence or peril of the person on the track, or knowledge from existing conditions at the time and place of the accident that injury would likely or probably result to such person from the speed at which the engineer was running the train, he could not be said to be guilty of wanton negligence." 175 Ala. 346, 57 So. 879.

"It is essential, to constitute wanton negligence, that the act done or omitted should be done or omitted with a knowledge and a present consciousness that injury will probably result, and this knowledge is not to be implied from a mere knowledge of elements of the dangerous situation. L. & N.R.R. Co. v. Brown, 121 Ala. 221, 25 So. 609; Burgess' Case, 114 Ala. 587, 22 So. 169; Markee's Case, 103 Ala. 160, 15 So. 511, 49 Am.St.Rep. 21; Swope's Case, 115 Ala. 287, 22 So. 174; Burgess' Case, 116 Ala. 509, 22 So. 913." 175 Ala. 347, 57 So. 879.

See Peters v. Southern Railway Co., 135 Ala. 537, 33 So. 332; Glass v. M. & C.R.R. Co., 94 Ala. 581, 10 So. 215; Brown, Adm'r, v. L. & N.R.R. Co., 111 Ala. 275, 19 So. 1001; Southern Railway Co. v. Bunt, 131 Ala. 591, 32 So. 507.

In Liverett v. N.C. & St. L. Ry., 186 Ala. 111, 115, 65 So. 54, 55, the familiar rule is reaffirmed that:

"When it appears *** that the intestate was a trespasser upon the defendant's track or right of way, this imposes upon the plaintiff the burden of further alleging that the defendant's servant failed to use due diligence to avoid the injury after discovering the peril." A.G.S.R.R. Co. v. Fulton, 144 Ala. 332, 341, 39 So. 282.

There is no pretense here that defendant's agents in charge of and operating the engine by which the car was being drawn was guilty of any subsequent negligence. Under the evidence plaintiff was a trespasser on the right of way of the defendant (Glass v. M. & C.R.R. Co., supra; A.G.S.R.R. Co. v Fulton, supra), and his injury was caused by a piece of timber extending from one of defendant's cars, which piece of timber "was not a part of the equipment of said train of cars, but such as was frequently used in loading cars at a guano factory and placed so as to get into and out of the cars while loading the same." The evidence further showed...