Southern Ry. Co. v. Smith

• Decision Date: 06 June 1911
• Citation: 55 So. 913,173 Ala. 697
• Parties: SOUTHERN RY. CO. v. SMITH.
• Court: Alabama Supreme Court

55 So. 913

173 Ala. 697

SOUTHERN RY. CO. v. SMITH.

Supreme Court of Alabama

June 6, 1911

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by A. J. Smith, as administrator, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The rulings on the pleadings sufficiently appear from the opinion of the court, as do the facts in the case.

The following charges were refused to the defendant: (10) "The damages recoverable in this case, if any, are not intended in any way to compensate the parents of deceased for the death of their son, but would be such sum as in your judgment would be sufficient to punish the act done; and if you believe from the evidence that the engineer ran the engine against deceased through mere negligence or error of judgment, plaintiff ought not to recover as much as if the engineer had wantonly or intentionally run his train against deceased." (12) "You will consider that men and women may be operated on by their sympathies one way or another. The sympathies of people come out very strongly sometimes in favor of the weaker party, or the female sex, or the poor man; but the jurors have no right to act upon any prejudice or any sympathy of that kind. You are to try to do exact justice between the parties, just as though they were two individuals standing upon perfect equality in all respects. Their rights are the same, and your duties to each party are the same, and they are not to be evaded." (18) "The court instructs the jury that this case should be considered by the jury as between two persons of equal standing in a community. The fact that one of the parties is a corporation should not affect your minds in any way; but the right of each party should and must be determined upon the evidence introduced in the case, and the instructions given to the jury, which are the law to guide you in your deliberations." (21) "Neither the speed of the train nor the failure to keep a lookout are evidence of negligence in this case. I charge you that from the evidence in this case the child was a trespasser, and the fact, if it be a fact, that people were accustomed to pass along the track at said place in large numbers would not make Robert Smith any the less a trespasser." (31) "The trainmen owed deceased no duty to keep a lookout. Any negligence of the trainmen sufficient to permit of a recovery in this case must have occurred after the child's presence on the track was discovered by them." (25) "Under the undisputed evidence in this case the deceased was unlawfully on the track, and the defendant owed him no duty, except not to injure him wantonly, recklessly, or intentionally." (33) "There is no evidence in this case which would authorize the jury to presume that the engineer was reckless of human life, and acted in a way that is in disregard of the duties imposed upon him as the engineer of the train." Charge 34, in the record, is the general affirmative charge for the defendant. (36) "No recovery can be had in this case for any negligence of the engineer in failing to discover the child on the track, or for a failure to discover him sooner than he did, if you find from the evidence that he did discover him before the engine struck him, under the fourth count."

Lawrence E. Brown, for appellant.

Virgil Bouldin, for appellee.

MAYFIELD J.

The action is under the homicide statute (Code 1907, § 2485) for the wrongful death of a child six years old. The child was killed by being run over by a passenger train on appellant's railroad. The injury occurred about 1 o'clock in the afternoon, and at a point about a quarter of a mile from a station, on appellant's road, in the little town or village of Larkinsville.

The parents of the child lived within a few yards of the railroad track, very near the place at which the child was killed. The child and its older brother were at the home of their parents at the time of the injury. The older one was in the house attending to some domestic duties, while intestate was playing out of doors. The older child had observed the younger on the track a few minutes (estimated at eight) before the accident. The mother had gone to the depot, which was about a quarter of a mile from her home and the scene of the accident. No one seems to have seen the child that was killed from the time its brother saw it, about eight minutes before the accident, to the time it was discovered by the engineer in charge of the locomotive that struck it--just a few seconds before the injury.

The engineer was the only person shown to have witnessed the accident. His evidence was that he saw the child lying on the track, near the middle, with one foot across one of the rails, and apparently asleep; that he first discovered it when within about 80, 90, or 100 yards of it when the train was running about 25 miles per hour. He testified that as soon as he discovered the presence of the child on the track he shut off steam and applied the emergency brakes, and that this was all he could do; that he brought the train to a stop in about "four car lengths and the engine and tender;" that this would be about 20 yards to the car, and that the engine and tender are equally as long; that the cars were all about the same length, except the ladies' car, which was about 70 feet in length. The engine and train had just left Larkinsville.

One Mrs. Downs testified that she lived about 100 yards from the place of the accident; that she went to the scene of the accident as soon as the train stopped; that she asked the engineer what he killed Mr. Albert Smith's little boy for, and he said he saw the child, but kept thinking it would get off the track, until it was too late to stop the engine and that he said the child must have been asleep. The engineer denied having made this statement to this witness.

Another witness for plaintiff, who was a passenger on the train, testified that the engineer told him, on the occasion of the injury, that when he (the engineer) first saw something on the track he thought it was a piece of paper but that when he discovered that it was a child it was too late to stop the train; that the train had gotten under good headway. The plaintiff testified that he had been on engines in motion, and that he could see as well as when on the ground.

There was evidence that the railroad track at the place of the injury was frequently and much used by the public, and that this fact was known to the engineer and other agents in charge of the train. To the introduction of this evidence the defendant reserved many exceptions.

It was ruled by this court (and we think correctly), on the former appeal, that the unfortunate child was a trespasser upon the track of the defendant when it was killed, and therefore that the defendant and its servants owed it only the duty they owed other trespassers under similar conditions, considering the facts of its age and condition, and that it was apparently asleep on the track at the time of the injury. The law on this subject (the killing of an infant while a trespasser on a railroad track) has been often declared by this court. G. P. R. R. Co. v. Blanton, 84 Ala. 154, 4 So. 621; A. G. S. R. R. Co. v. Moorer, 116 Ala. 642, 22 So. 900; H. A. & B. R. R. Co. v. Robbins, 124 Ala. 113, 27 So. 422, 82 Am. St. Rep. 153; G. & A. U. Ry. Co. v. Julian, 133 Ala. 371, 32 So. 135.

Moorer's Case, supra, reviews the authorities on the subject, and adopts the rule stated by Mr. Elliott, in his work on Railroads (section 125), as the correct one. In the above case this court sai...