Sims v. Alabama Great Southern Ry. Co.

• Decision Date: 15 June 1916
• Docket Number: 7 Div. 779
• Citation: 197 Ala. 151,72 So. 328
• Parties: SIMS v. ALABAMA GREAT SOUTHERN RY. CO.
• Court: Alabama Supreme Court

72 So. 328

197 Ala. 151

SIMS v. ALABAMA GREAT SOUTHERN RY. CO.

7 Div. 779

Supreme Court of Alabama

June 15, 1916

Appeal from Circuit Court, Etowah County; J.E. Blackwood, Judge.

Action under the Homicide Act (Code 1907, § 2486), by Mattie V Sims, as administratrix, for damages for the death of her intestate. Judgment for defendant, and plaintiff appeals. Affirmed.

The pleadings and the facts sufficiently appear. The following charges were given for defendant:

C. The court charges the jury that the exercise on the part of the engineer of the presumption that a human being will extricate himself from a position of peril or will avoid injury is not the taking of the chance in such a sense as to render the defendant liable until the engineer discovers something in the appearance or conduct of plaintiff's intestate which would indicate to a reasonable man, situated as the engineer was, that said intestate would not of himself avoid the injury.

D. The court charges the jury that, if plaintiff's intestate stepped from a place of safety in front of an approaching engine and so close thereto that the engineer could not by the use of all means known to skillful engineers have avoided the injury, the plaintiff cannot recover.

E. Unless you are reasonably satisfied from the evidence that either Engineer Wilson or Fireman Ledford was guilty of reckless indifference to the life and safety of others, or was guilty of some negligence after discovery of the peril of plaintiff's intestate which resulted in the death of plaintiff's intestate, you should find a verdict for defendant.

H. The court charges the jury that where one walks on the track or right of way of a railroad, without invitation or license, he is a trespasser and assumes the peril of the position in which he has voluntarily placed himself, and the railroad owes him no duty except the exercise of reasonable care and diligence to avoid injuring him as soon as his peril becomes apparent.

Riddle Burt & Riddle, of Talladega, and McCord & Davis, of Gadsden for appellant.

Goodhue & Brindley, of Gadsden, for appellee.

GARDNER J.

This action is brought under the homicide act by the administratrix of the estate of W.C. Sims to recover damages for the death of her intestate, who was killed by being run over by one of defendant's switch engines while on or crossing the track in Attalla, Ala.

The first count relied for recovery upon simple negligence alleging that the plaintiff's intestate was killed while crossing the track of defendant's railway at a "public crossing." The second count is for subsequent negligence, and the third is for wanton, willful, or intentional injury. To the first count of the complaint special pleas of contributory negligence were interposed, and plaintiff's demurrers thereto were by the court overruled. These rulings constitute the first assignment of error.

The plaintiff's intestate was killed on the morning of December 31, 1913, between the hours of 9 and 10 o'clock, and at a point between the compress and the depot of the defendant railroad. Between these two points were a number of tracks--five or six--and the engine which struck the intestate was engaged in switching cars. Near the compress there was a track for the convenience of that business, called the compress track. This track and the transfer track, on which intestate was killed, were not laid parallel but approached each other triangularly as they neared the depot. Plaintiff's intestate on that morning descended the steps from the compress platform and walked down between the tracks toward the depot. The great weight of the evidence is to the effect that intestate stepped upon the transfer track immediately ahead of the switch engine, a witness for plaintiff testifying that:

"Sims got on the track in front of the engine. *** Didn't step on the track, but stepped over the first rail, and just as he raised his foot *** when he stepped over, the engine was not over three or four feet back from him. *** He did not have time to put the other foot down until it struck him."

Another witness for plaintiff (witness Hinds) testified that, when intestate "came on the transfer track, he walked up it a piece, maybe 30 or 40 feet," and "he was walking right down the transfer tracks at the place when he was hit." The distance between the compress and transfer tracks at the place where the intestate was killed is estimated to be about twelve feet.

There is proof to the effect that some of the employés of the compress crossed the defendant's railroad track; that cotton buyers also have been going to the compress across these tracks; that there are paths worn along between the tracks; and that this has been done "since 1912." One of the witnesses for plaintiff stated that the compress worked between 20 and 30 men during the busy part of the season, and that people going to and from the compress and depot went that way. There is nothing in the evidence to indicate at what hours of the day these tracks were so crossed, but it tends to show that only employés and those having business at the compress were accustomed to walk along or cross over them.

We need not further discuss the evidence in this connection. Suffice it to say, it has been carefully considered in consultation, and we are persuaded that the evidence in this record falls far short of bringing this case within the requirements of the rule laid down in what may be called "popular crossing" cases. It is not pretended that the place in question was a street--or road--crossing, but merely that it was a "public crossing," so established by continuous and frequent use by the public. We think it is clear that plaintiff's intestate was not killed at a "public crossing." So. Ry. Co. v. Stewart, 179 Ala. 304, 60 So. 927; Blackmon v. Cen. Ga. Ry., 185 Ala. 635, 64 So. 592; So. Ry. Co. v. Drake, 166 Ala. 540, 51 So. 996; B'ham So. Ry. Co. v. Fox, 167 Ala. 281, 52 So. 889; Savannah, etc., R.R. v. Meadors, 95 Ala. 137, 10 So. 141; Helms v. Cen. Ga. Ry., 188 Ala. 393, 66 So. 470.

The first count of the complaint relied specifically upon the public-crossing theory. The affirmative charge was therefore properly given...