Southern Ry. Co. v. Posey

• Decision Date: 28 November 1899
• Citation: 124 Ala. 486,26 So. 914
• Parties: SOUTHERN RY. CO. v. POSEY.
• Court: Alabama Supreme Court

26 So. 914

124 Ala. 486

SOUTHERN RY. CO. v. POSEY.

Supreme Court of Alabama

November 28, 1899

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by A. C. Posey against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee, A. C. Posey, against the Southern Railway Company, to recover damages for the killing of mules owned by the plaintiff, and injury to his wagon and harness; the accident occurring at a crossing where the railroad crosses the dirt road. The complaint, as amended contained three counts. The first count alleged that on August 21, 1897, about 8 o'clock p. m., the plaintiff's wagon was in the control of a driver, and while it was crossing the railroad crossing "the wheels of said wagon were caught in the guard rail on the track of the defendant; that a plank next to the main rail in said crossing, and between the two main rails, did not extend clear across the said crossing, leaving an open space in the crossing, which said space was not flush and level with the main rail, and which open space in said crossing was lower by a rail depth than the other part of the crossing, causing the front wheel of plaintiff's wagon, when it struck the said exposed rail in said crossing, to be deflected and drawn down into the space between the main rail and the guard rail at said crossing, and that it was the duty of the defendant company to maintain the crossing in good condition" "and that said driver made and exercised due and reasonable efforts to disengage the said wagon from the guard rail of said track, and that while he was endeavoring to do so" a passenger train of the defendant company ran over said wagon and mules, causing the injury complained of; and "plaintiff avers that by reason of the negligence of said defendant, defendant's agents or employés, in leaving at said crossing a defective crossing as aforesaid the said damage to plaintiff occurred." The second count of the complaint, after setting out the facts of the accident, averred that the defendant's train which ran over the mules and wagon was at such time running at a high rate of speed, without blowing the whistle or ringing the bell at said crossing, and that "by reason of defendant's said negligence in failing to ring said bell or blow said whistle" and injuries complained of were caused. The third count was substantially the same as the first count. To the first and third counts the defendant demurred upon the grounds that they failed to show in what the defect complained of consisted, and that they failed to aver facts showing that the defendant was negligent in the maintenance of the crossing. To the second count the defendant demurred upon the grounds that it fails to aver with sufficient certainty that the negligence of the defendant's servants was the proximate cause of the injury complained of, and that said count fails to aver with certainty in what the negligence of the defendant consisted. These demurrers were overruled. The defendant pleaded the general issue and several special pleas, in which it set up the contributory negligence on the part of the driver of plaintiff's team at the time of the accident. The evidence for the plaintiff tended to show that the accident occurred at a point on defendant's road where it crosses the public road; that the public road crosses the defendant's road at somewhat of an angle; that at said public-road crossing there was a guard rail of iron next to the main rail of the track; that where the public road crosses the defendant's track there were put planks on each side of the rails; that at one end of the crossing where the guard rail was, there was a space between the guard rail and the plank put along the main rail for the purpose of forming the crossing, and that it was in this space the wheel of the plaintiff's wagon was caught while it was being driven across said crossing; that it was 8 o'clock at night when the plaintiff's driver was driving the wagon across said crossing, and while he was trying to disengage the wheel which had been caught in the guard rail a passenger train of the defendant ran into the wagon and over the mules causing the injuries complained of. The testimony for the defendant tended to show that the space between the guard rail and the plank was on the edge of the roadway, and that if the plaintiff's wagon had been driven along the usual roadway the...