Snider v. Alabama Great Southern R. Co.

• Decision Date: 10 May 1923
• Docket Number: 6 Div. 911.
• Parties: SNIDER v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

97 So. 209

210 Ala. 119

SNIDER v. ALABAMA GREAT SOUTHERN R. CO.

6 Div. 911.

Supreme Court of Alabama

May 10, 1923

Rehearing Granted June 30, 1923.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action for damages by William E. Snider, as administrator of the estate of Margaret Snider, deceased, against the Alabama Great Southern Railroad Company, for the wrongful killing of his intestate. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Brown &amp Ward, of Tuscaloosa, for appellant.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.

ANDERSON C.J.

Counts 7 and 8 charge wantonness, but the facts set up as constituting same are not sufficient as the mere failure to observe the statutory requirement as to signals even at a populous place or crossing without more is not per se wantonness. A. G. S. R. R. v. Linn, 103 Ala. 134, 15 So. 508; L. & N. R. R. v. Turner, 192 Ala. 392, 68 So. 277. For aught appearing from said counts, the train may have been moving at a very slow rate of speed. Moreover count 4, to which the demurrer was overruled, charged wantonness in most general terms, and under which the plaintiffs could prove wanton misconduct of every description.

The intestate was not killed at a public crossing, but it is insisted, and may be conceded, that it was a point where people crossed the defendant's track in great numbers at a particular hour of the day, to wit, just before and immediately after the arrival of the mail train, and which was due to arrive at or about the time of the injury in question, yet the proof fails to show that the train in question was operated at such a rapid rate of speed as to render a failure to give the warning signals wanton misconduct on the part of the enginemen. Cases supra. The proof shows that this was a heavy loaded freight train, going up grade, making a great noise by the exhaust, and not going at a greater rate of speed than 10 to 12 miles per hour, and could have been stopped in a very short distance, so, even if the signals were not given, but as to which fact there was a conflict in the evidence, the conduct of the enginemen did not, as matter of law, amount to wantonness. Moreover, had the proof shown that the train was running at a dangerous rate of speed under the surrounding circumstances, there is nothing to show that these particular enginemen were conscious of probable danger to people at the point in question. True, they had been running on this road several years, but there is nothing to indicate that they had passed this particular point with such frequency at the particular hour of the day when the passageway was used with great frequency as to apprise them of the use or habit of the people, and thereby charge them with notice of the probable danger. This was a through freight, which may have had no regular schedule time, nor was there proof of the schedule time of the runs of this engineer or fireman, so as to make them familiar with the use of defendant's track as a passageway at the hour when it is claimed the crossing was populous. L. & N. R. R. v. Heidtmueller, 206 Ala. 29, 89 So. 191.

The proof also shows that the train could not have been stopped after discovering the intestate's peril and before striking her, but, in addition to this, it shows that the train was equipped with the usual modern means of stoppage, and which were in good working order, and that the engineer immediately resorted to the most effective means of stopping the train as soon as he was informed of the danger. Harris v. N. C. & St. L. R. R., 153 Ala. 139, 44 So. 962, 14 L. R. A. (N. S.) 261.

It is insisted that the engineer or fireman, one or both, was guilty of subsequent negligence for failing to blow the whistle after discovering the intestate. This may be questionable for the reason that they may have thought she was not in peril under ordinary conditions or they may not have...