Southern Ry. Co. v. Fricks

• Decision Date: 20 April 1916
• Docket Number: 8 Div. 846
• Citation: 196 Ala. 61,71 So. 701
• Parties: SOUTHERN RY. CO. v. FRICKS.
• Court: Alabama Supreme Court

71 So. 701

196 Ala. 61

SOUTHERN RY. CO. v. FRICKS.

8 Div. 846

Supreme Court of Alabama

April 20, 1916

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

Action by Mrs. Mary Fricks, administratrix, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Lawrence E. Brown, of Scottsboro, for appellant.

Milo Moody, of Scottsboro, and S.L. Sinnott, of Birmingham, for appellee.

MAYFIELD J.

This is an action under the homicide statute, to recover damages of the defendant for the wrongful death of appellee's intestate. The intestate was killed by one of the appellant's freight trains in the town of Scottsboro Ala. The train which killed him was backing on a side track for the purpose of leaving a tank of oil which was consigned to that station. Intestate was the agent of the oil company the consignee of the tank of oil being delivered by the railroad, and was on the track for the purpose of designating the point on the side track at which the tank should be left, so that the oil could be stored in the tanks of the consignee. It was a disputed question, made so by both the pleading and the proof, whether he was thus on the side track with the knowledge, consent, or request of the railroad company. This fact, of course, is an element to be considered in determining the duty which the defendant owed the intestate, and whether the handling and movement of the train on the occasion in question was negligent or wanton. It was also made a disputed question by the pleading and the proof whether the side track of the railroad at the place of the injury was so used by the public, by such numbers and with such frequency, as to impose on the defendant the duty of keeping a lookout for trespassers on the track at the point of the collision with intestate. This fact of frequent use, by great numbers of pedestrians, of parts of railroad tracks in populous districts, is an element which may enter into the question whether the handling and movement of trains at such used points is negligent or wanton; and this, even though the persons so using the track may be trespassers.

The case was tried on one count only, which was intended by the pleader, and treated by the trial court, to state a case of wantonness or willful injury. It was demurred to by the defendant, and a great number of grounds were assigned. Those chiefly insisted upon are to the effect that the count was treated and intended as a count for wantonness or willful injury, yet the facts alleged showed at best only simple negligence. The count is not as certain in this respect as it could be made; but we deem it reasonably certain in stating a cause of action as for wanton or willful injury. It alleges the facts that the intestate was on the track with the knowledge and consent of the defendant's agents, and that with such knowledge of intestate's danger and peril they did the acts alleged, in a wanton or willful manner, which proximately resulted in the injuries complained of. It contains, among others, the following allegations of fact, and conclusions:

"The plaintiff alleges that at the time and place where her intestate was so run over and killed was a place of great frequency of travel by the public where people traveling along said track were wont to be passing in great numbers, known by the agents and servants of the defendant, and, knowing that plaintiff's intestate was going to be at such place to show said servants where to place said oil car, willfully, wantonly, or intentionally backed a car or train of cars back in on said side track at a high and dangerous rate of speed, without giving any warning by ringing the bell or blowing the whistle or other signal of intention to back in on said side track, and, without having any one at said point or on the rear of the train as it came back to give warning of its approach, ran against or over plaintiff's intestate and killed him, as a proximate consequence of said wantonness of said servants and agents of defendant."

This we hold to be sufficient, under our liberal rules of pleading, to charge wantonness; and, there being no attempt to charge simple negligence, the defendant could not be, and was not, misled as to its defenses to such count. The pleas of contributory negligence were therefore not availing or appropriate to this count; and, as it was the sole count on which trial was had, the court properly refused to instruct the jury as to the doctrine of contributory negligence.

Other charges were properly refused to the defendant, because they were calculated to mislead the jury as to whether or not contributory negligence would be availing as a defense.

The propositions of law announced above in this opinion have been so frequently reaffirmed that it is both useless and a waste of time and space to cite the decisions.

The case must be reversed, however, because of rulings adverse to the defendant in allowing the plaintiff, over the defendant's protest, to prove the declarations of the engineer, made some time after the injury, which declarations were not a part of the res gestae, and were therefore not admissible against his principal, this defendant. One of the recitals of the bill of exceptions as to such rulings is as follows:

"Nute Bell, witness for the plaintiff, testified on rebuttal as follows: 'Just after the occurrence I detailed on the stand this morning, when this man was run over, I saw the engineer of the train. He was going back down to the train, going back down to the engine. He was just passing me talking to the railroad men.' Plaintiff's counsel then asked the witness this question: 'Did he make this remark on the occasion that day: "Damn him! he ought to have been run over; he ought

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