Southern Ry. Co. v. Lawler

• Decision Date: 03 June 1914
• Docket Number: 265
• Citation: 65 So. 857,11 Ala.App. 241
• Parties: SOUTHERN RY. CO. v. LAWLER.
• Court: Alabama Court of Appeals

65 So. 857

11 Ala.App. 241

SOUTHERN RY. CO. v. LAWLER.

No. 265

Court of Appeals of Alabama

June 3, 1914

Rehearing Denied June 30, 1914

Appeal from Circuit Court, Madison County; D.W. Speake, Judge.

Action by T.S. Lawler against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The facts sufficiently appear from the opinion of the court. The following are the charges refused to defendant:

(3) Failure of plaintiff's driver to stop, look, and listen at a point where, had he looked, he could have seen the approaching train is contributory negligence such as would bar plaintiff's recovery in this case.

(4) If you are reasonably satisfied from the evidence that the engineer in charge of defendant's engine, at the time of the alleged injury, was keeping a careful and proper lookout, consistent with his duties in the proper operation of the engine, it was not incumbent upon said engineer to attempt to stop said engine until after he discovered the peril of plaintiff's horse; and, if said alleged injury could not have been avoided after the engineer discovered the peril of plaintiff's horse, then your verdict must be for defendant.

Charges 5 and 6 are similar to 3, although somewhat variant in phraseology. Charges 12 and 15 are similar to 4. The other charges mentioned in that connection are a combination of 3 and 4.

(2) The burden of proof is on plaintiff to prove to your reasonable satisfaction that the person in charge of plaintiff's horse at the time of his alleged injury did all in his power to prevent the horse being struck by said engine.

(7) The burden of proof is on plaintiff to show to your reasonable satisfaction that the driver in charge of the horse at the time of the alleged injury was not guilty of negligence in attempting to cross the track of defendant in front of the approaching train.

(19) The verdict should be for defendant on the second count if you believe the evidence.

(B) No duty devolved on Isaac James, the fireman, to stop the train as it approached the crossing.

(C) The fireman was under no duty to inform the engineer of the approaching team until he saw the danger was imminent--that the driver would probably attempt to cross the railroad track. If the fireman gave notice of the danger to the engineer as soon as he discovered the peril, and the engineer then did everything in his power to prevent the collision, and if his engine was properly equipped, your verdict must be for defendant.

(E) The undisputed facts in this case show that the driver of plaintiff's team was guilty of negligence in failing to stop and look for the train. It was therefore unnecessary for the engineer to blow the whistle, or the fireman to ring the bell.

(F) No evidence in this case that the engineer was guilty of willful negligence.

(G) Knowledge of the fireman is not knowledge of the engineer. A train is under the charge of the engineer, and the engineer cannot be said to be guilty of willful or wanton neglect, unless he knew of the peril of the team in time to avert it, and that the engine was driven with reckless indifference to the result.

(L) The averment in the second count that the injury was the result of the wanton negligence of the employés is nothing more than a charge of simple negligence. Defendant is not liable for simple negligence because, under the evidence defendant's driver was guilty of contributory negligence.

Cooper & Cooper, of Huntsville, for appellant.

R.E Smith, of Huntsville, for appellee.

WALKER, P.J.

This was an action to recover damages for the killing of a horse by a train of the appellant (defendant below) at a crossing of its track and a street in the city of Huntsville. The complaint contained three counts, one charging simple negligence, another wanton negligence, and the third negligence subsequent to the discovery by the defendant, its agents, servants, or employés, of the horse's dangerous proximity to the track as the train approached the crossing. The case was tried on issue joined on the plea of the general issue, with leave to offer in evidence any matter or thing which would be a good defense in bar.

The horse in question was one of a team being driven to a wagon by an employé of the plaintiff. The defendant's track in the direction from which the train was approaching curved towards the crossing for a considerable distance, and until it was within a few feet of the crossing. The train and the wagon were going in the same general direction, eastwardly. The engineer from his position in the right hand side of the engine could not see the crossing or the team approaching it from his left until he was within a few feet of the crossing as he was on the outside of the curve, and the boiler of the engine obstructed his view in that direction. It was the duty of the fireman to sit on the left-hand side of the engine and to be on the lookout. He was in that position as the train approached the crossing, and there was evidence tending to prove that from his position he could and did see the team and wagon...