Southern Ry. Co. v. Cunningham, 6 Div. 934.

• Decision Date: 07 April 1932
• Docket Number: 6 Div. 934.
• Parties: SOUTHERN RY. CO. ET AL. v. CUNNINGHAM.
• Court: Alabama Supreme Court

141 So. 561

224 Ala. 642

SOUTHERN RY. CO. ET AL. v. CUNNINGHAM.

6 Div. 934.

Supreme Court of Alabama

April 7, 1932

Rehearing Denied May 19, 1932.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for wrongful death by Ph be Cunningham, as administratrix of the estate of Nancy Burk, deceased, against the Southern Railway Company and William A. Goree. From a judgment for plaintiff, defendant appeals.

Affirmed.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

W. A Denson, of Birmingham, for appellees.

BOULDIN J.

The suit is under the Homicide Act (Code 1923, § 5696).

Plaintiff's intestate came to her death from being run upon by a locomotive of defendant, drawing a train of freight cars. The time was late at night. The place upon a high trestle at Cook Springs in Saint Clair county.

The case went to the jury on a count for subsequent negligence in the operation of the locomotive. The pleas were the general issue, and special pleas of subsequent contributory negligence-negligence of deceased after the discovery of her own peril.

Defendant had the full benefit of this latter defense under pleas 2 and 3. There was, therefore, no error in sustaining demurrers to pleas 6 and 7, setting up the same defense and calling for like proof.

The witness, Couch, a locomotive engineer of long experience extending up to the time of the accident, was a competent witness as to the distance within which the train could have been brought to a stop under conditions disclosed in the evidence.

The testimony of the engineer tended to show he discovered the woman about the middle of the trestle, 450 feet in length when his engine approached within 100 to 150 feet of the west end of the trestle, and while running down grade at a speed of 10 to 12 miles per hour; that she was then trying to flag the train with a flash-light.

There was further evidence, such as blood-stains on the track, and articles found, tending to show she was within some 40 feet of the east end of the trestle when killed.

Under the evidence as a whole, it was clearly for the jury to determine whether the prompt resort to all the means at hand to stop the train, properly equipped with modern appliances, and moving at the speed stated, would have been effected within the distance of 325 to 500 or more feet, as the jury should find.

The discovery of a person about midway a trestle 450 feet...