Southern Ry. Co. v. Stollenwerck

• Decision Date: 24 November 1909
• Citation: 166 Ala. 556,52 So. 204
• Parties: SOUTHERN RY. CO. v. STOLLENWERCK.
• Court: Alabama Supreme Court

52 So. 204

166 Ala. 556

SOUTHERN RY. CO. v. STOLLENWERCK.

Supreme Court of Alabama

November 24, 1909

On Rehearing, February 26, 1910.

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by E. F. Stollenwerck, as administrator de bonis non of the estate of Charles M. Bryan, deceased, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The first count alleges: That the Southern Railway and the Louisville & Nashville Railroad cross each other on grade in North Birmingham, known as the "North Birmingham crossing." That her intestate was an engineer in the service or employment of the Louisville & Nashville Railroad Company, and had charge of an engine to which cars were attached on a branch of the Louisville & Nashville known as the "Birmingham Mineral," and just as the engine which plaintiff's intestate was running got upon said crossing one of defendant's trains, consisting of an engine and several cars, came along on said defendant's railroad towards Birmingham, and ran into and collided with the engine which was being operated by plaintiff's intestate, so wounding and scalding plaintiff that he died. Plaintiff avers that the death of her intestate was caused by the negligence of defendant's employés, who were operating the defendant's said train, in the running and management of said train. The fourth count is similar to the first as to the statement of facts, and alleges the negligence as follows: "Plaintiff avers that defendant's employés in charge of defendant's said train discovered the said Louisville & Nashville train moving over said railroad crossing; but, owing to the willful wanton, or intentional negligence of said employé in charge of defendant's train, the said train ran forward without stopping until it ran into and collided with the engine upon which plaintiff's intestate was riding, causing the injuries to plaintiff's intestate as heretofore set out and causing his death." For the facts in the case, see former report of the case, referred to in the opinion.

The following charges were refused to the defendant: (6) "There can be no wantonness on Mosby's part, under the evidence, unless Bryan failed to stop his engine within 100 feet of the crossing." (7) "There is no evidence of wantonness in this case, if you believe from the evidence that Bryan's engine stopped for the crossing and proceeded across the crossing as testified to by plaintiff's witnesses." (12) "There can be no wantonness on Mosby's part in going on the crossing under the evidence in this case, unless Bryan failed to stop his engine within 100 feet of the crossing." (8) "I charge you that, under the evidence in this case, you must find that plaintiff's intestate was guilty of contributory negligence." (9) "Under the evidence in this case, plaintiff's intestate was guilty of contributory negligence, which was the proximate cause of the injury which is alleged to have caused his death, and plaintiff cannot recover under the first count of the complaint." (11) "It was the duty of plaintiff's intestate to know that the crossing was clear before he undertook to cross, and not to proceed until he knew the way was clear; and if he failed in this duty, and was thereby injured, he was guilty of contributory negligence, and plaintiff cannot recover in this suit." (13) "If the jury believe from the evidence that defendant's engineer was not aware of the proximity of the Louisville & Nashville train until it was so close to him as to be about to strike him, and that as soon as he discovered the peril he applied the emergency brake and did all he could to avoid the injury, he was not guilty of wanton, reckless, or intentional negligence, and the plaintiff cannot recover in this suit." (14) "I charge you that, before you can find a verdict in favor of the plaintiff, you must be reasonably satisfied from all the evidence in this case that defendant's engineer, Mosby, ran his train against the engine upon which plaintiff's intestate was riding with the consciousness that the act which he was committing would likely result in death or injury to the plaintiff's intestate or some other person on the train or engine of the Louisville & Nashville Railroad Company."

Weatherly & Stokely, for appellant.

Frank S. White & Sons, for appellee.

ANDERSON J.

This is the third appeal in this case, it being reported first as Southern R. R. Co. v. Bryan, Adm'r, 125 Ala. 310, 28 So. 445, and the second time as Southern R. R. Co. v. Bonner, Adm'r, 141 Ala. 517, 37 So. 702. The only counts considered by the jury, upon the trial from which the present appeal is had, are 1 and 4, as all others were eliminated by pleading or special instructions. It was held on the second appeal (141 Ala. 517, 37 So. 702) that there was evidence sufficient to submit both counts to the jury, and that the general charge should not have been given as to either count, because of a failure of proof, or as to the first count because of proof beyond dispute of the plea of contributory negligence thereto. After a careful consideration of the argument of appellant's counsel and the evidence, we are of the opinion that the former holding is sound, and find no such change of the facts upon the last trial as would justify the general charge for the defendant as to either count, either upon failure of proof as to the allegations or because of undisputed proof of contributory negligence.

It is insisted, among other things, by appellant's counsel that defendant was entitled to the general charge as to the first count because of a variance; that the count avers that...