South & N.A.R. Co. v. Donovan

• Decision Date: 30 April 1888
• Citation: 84 Ala. 141,4 So. 142
• Court: Alabama Supreme Court
• Parties: SOUTH & NORTH ALA. R. CO. v. DONOVAN.

4 So. 142

84 Ala. 141

SOUTH & NORTH ALA. R. CO. v. DONOVAN.

Supreme Court of Alabama

April 30, 1888

Appeal from circuit court, Jefferson county; LEROY F. BOX, Judge.

This was an action against the South & North Alabama Railroad Company, by James Donovan, father of William Donovan, for personal injuries to the said William, who was run over by a train of cars in the corporate limits of the city of Birmingham. The child was under 10 years of age; was in the habit of crossing the railroad track at the place where he was injured as he went to and from to carry his father's dinner to him; was on the track when struck by the train, and looking in the opposite direction from the train of cars which consisted of coal cars and a locomotive, and the locomotive was in the rear of the cars, and pushing them backwards at a greater rate of speed than four miles per hour. An ordinance of the city of Birmingham prohibited under penalties, the running of locomotive engines, within the corporate limits, at a greater rate of speed than eight miles per hour when running forward, and four miles per hour when running backward, and required the usual signals to be given continuously by ringing the bell or otherwise, when locomotives or trains were running through the city. The place where the injury occurred was not a public crossing but the evidence showed that many people walked on and about the railroad track there and elsewhere. Evidence as to giving of signals by the approaching train was conflicting; as also was the evidence as to how long the boy had been standing on the track when struck,-defendant's testimony being that the boy was walking along by the side of the track, and stepped thereon when the train was only about 30 feet behind him. Act Ala. Jan. 23, 1885, (Code 1886, § 2588), provides that a suit by the father or mother is a bar to a suit by the representatives of a minor for a personal injury to such minor. Defendant appeals from the rulings, and judgment for plaintiff.

Hewitt, Walker & Porter, and Jones & Falkner, for appellant.

James Weatherly, for appellee.

SOMERVILLE J.

The plea of the defendant numbered 1 was defective, in failing to aver that the employes in charge of the train used proper diligence in keeping a lookout for obstructions on the track including, in this case, the plaintiff's son, for whose injury the father brings the present action. The plea avers that the infant son was trespassing upon the track at a point where there was no public crossing, to which the defendant company had the exclusive right, and that so soon as its employes discovered the boy all available preventive measures were adopted to avert the injury. This plea admits the averments of the complaint that the alleged trespass occurred within the corporate limits of the city of Birmingham, and that the train was running at a rate of speed in excess of that prohibited by an ordinance of the city. It rests, therefore, upon the idea that there is no duty devolving on a railroad company, under these circumstances, to keep any lookout for trespassers who walk upon or across its track at any other place than public crossings, even within the corporate limits of a city,-it may be a populous city,-and within the business portion of it, where necessity may often compel this kind of trespassing, or common usage give color of sanction to it under the form of an implied license. Railroad companies, operated by steam-power, are required to use very great care; and this care must be graduated to suit the exigency of increased danger whether to employes, passengers, or the public. We cannot say that it was not the duty of the persons who were managing the train, under the circumstances, to keep a vigilant outlook even for trespassers, and that a failure to do so would not be negligence. The decisions of this court support the contrary conclusion, at least where the injury occurs in the streets of a city, town, or village. What the rule would be where a naked trespasser on the track is injured in the open country, or elsewhere, by the failure of the railroad engineer to keen a vigilant lookout, is an open question in this state, upon which we now express no opinion. Code 1886, § 1144; Railroad Co. v. Shearer, 58 Ala. 672, 678; Railroad Co. v. Sullivan, 59 Ala. 272; Frazer v. Railroad Co.,81 Ala. 185, 1 South. Rep. 85; Freer v. Cameron, 55 Amer. Dec. 674, note. The demurrer to this plea was sufficient to raise the point, and it was properly sustained. And, for like reason, the first charge given by the court at the request...