Southern Ry. Co. v. Cunningham

• Decision Date: 25 June 1896
• Citation: 20 So. 639,112 Ala. 496
• Parties: SOUTHERN RY. CO. v. CUNNINGHAM.
• Court: Alabama Supreme Court

20 So. 639

112 Ala. 496

SOUTHERN RY. CO. v. CUNNINGHAM.

Supreme Court of Alabama

June 25, 1896

Appeal from city court of Anniston; James W. Lapsey, Judge.

Action by James Cunningham against the Southern Railway Company. From an order overruling a demurrer to the complaint defendant appeals. Reversed.

This appeal is taken from the rulings of the court below on the pleadings, as provided by the act of the legislature establishing said city court of Anniston (Acts 1888-89, p 572). The action was brought by the appellee, James Cunningham, against the Southern Railway Company, the appellant. The complaint contained three counts. The third count was as follows: "That on or about the twelfth of November, 1895, plaintiff's intestate was in the employ of the defendant as a work hand on a construction or work train, then used as such by defendant on one of its railroads in Walker county, Ala., near a certain station called 'Hewitt's,' at which station there was a side track used for allowing cars to pass each other there; that plaintiff's intestate was on said work train on said day as said laborer in said employ, and under the supervision and guidance of one H. P. Hunnicutt, as the conductor and director of said train and the laborers thereon; that, by reason of the gross negligence of a person then in the employ of defendant with said train, and under said supervision of said Hunnicutt, which said person then had charge and control of a certain signal point just east of said station on said day, and it was his duty to flag or warn all trains approaching said station from the east on that day that there was near said station on the west said work train, and that the same would have to be passed at said station to the west of said signal point; that the name of said person so in charge of said point, and whose duty it was to warn said trains from the cast, as aforesaid, is unknown to plaintiff and he wholly failed to perform said duty, and with gross negligence and recklessness, evincing utter disregard for the life and safety of the persons whom he knew to be in danger west of said point, he left said point wholly without a signal or warning, and deserted his post of duty; that because of said gross negligence and reckless disregard of duty on the part of said person, a freight train passed said station, and violently collided with a work train going east towards said station, and by such collision, which...