Southern Ry. Co. v. Sherrill

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, Justice.
• Citation: Southern Ry. Co. v. Sherrill, 232 Ala. 184, 167 So. 731 (Ala. 1936)
• Decision Date: 16 April 1936
• Docket Number: 8 Div. 657
• Parties: SOUTHERN RY. CO. v. SHERRILL.

167 So. 731

232 Ala. 184

SOUTHERN RY. CO. v. SHERRILL.

8 Div. 657

Supreme Court of Alabama

April 16, 1936

Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr. Judge.

Action under the homicide statute (Code 1923, § 5696) by Irene Allison Sherrill, as executrix of the estate of Wiley Earnest Sherill, deceased, against the Southern Railway Company and others. From a judgment for plaintiff, the named defendant appeals.

Affirmed on condition of remittitur.

W.H Mitchell, of Florence, and R.H. Scrivner and Stokely Scrivner, Dominick & Smith, all of Birmingham, for appellant.

W.A. Denson, of Birmingham, for appellee.

THOMAS Justice.

The suit was under the homicide statute (Code 1923, § 5696), and the trial had on count Z, which reads as follows:

"Plaintiff who sues as the executrix of the estate of Wiley Earnest Sherrill, deceased, claims of the defendants, One Hundred Thousand Dollars ($100,000.00), damages, for that on to-wit, December 27, 1933, plaintiff's intestate, while in such close proximity to the railroad track of the defendant, Southern Railway Company, as to be struck by an engine moving along said track, was struck by a locomotive of said defendant while said locomotive was travelling on said track at McWilliams Crossing, near Cherokee in the County of Colbert, State of Alabama, and killed. Plaintiff avers at the time of said killing of said intestate by said locomotive, the defendant R.A. Thompson was in the employment of the defendant, Southern Railway Company, as a fireman, and was engaged in the active performance of the duties of said employment in and about the operation of said locomotive at said time. Plaintiff avers J.R. Hackworth was at said time and place in the employment of said defendant, Southern Railway Company, as an engineer, and was the engineer on said locomotive, at said time and place, which killed plaintiff's intestate. Plaintiff avers the defendant W.H. Cox was in the employment of the defendant, Southern Railway Company, as a conductor and was engaged in the active performance of the duties of said employment in and about the operation of said train at said time as conductor of said train. Plaintiff avers the defendant, G.K. Counts, was in the employment of the defendant, Southern Railway Company, as a flagman, and was engaged in the active performance of the duties of said employment in and about the operation of said train at said time as flagman of said train. Plaintiff avers the death of her intestate was proximately caused by the negligence of the defendants, R.A. Thompson, W.H. Cox, G.K. Counts, and said engineer, J.R. Hackworth, while each was in the employment of said defendant, Southern Railway Company, and each was acting within the line and scope of his employment and while each were (was) in the active performance of the duties of their (his) employment, said Hackworth as engineer, and said Thompson as fireman, and said Cox as conductor of said train, and said Counts as flagman of said train, of said locomotive which killed plaintiff's intestate at said time and place, which negligence consisted in this: said Hackworth and said Thompson, and said Cox and said Counts, after becoming aware of the peril of said locomotive colliding with plaintiff's intestate, and while acting within the line and scope of their employment, negligently failed to use all of the means at their command to avoid said locomotive colliding with said intestate, when by the use of said means said locomotive would have been prevented from colliding with said intestate with such violence as to kill intestate, and intestate's death would have been avoided."

Pleas 5, 6, and 7, as answer to count Z, were to the effect that plaintiff's intestate knew of the approach of said train and negligently attempted to cross defendant's tracks.

The gravamen of the complaint is the negligence of defendant's servants or agents, after the discovery of intestate's perilous position upon the track of the defendant, to use "all the means at their command to avoid said locomotive colliding with said intestate, when by the use of said means said locomotive would have been prevented from colliding with said intestate with such violence as to kill intestate, and intestate's death would have been avoided."

Count Z was no doubt drawn under Randle v. Birmingham Railway, Light & Power Co., 169 Ala. 314, 53 So. 918.

The assignments of error are considered as presented by counsel. The rule for giving or refusing the general affirmative charge is well understood. McMillan v. Aiken et al., 205 Ala. 35, 40, 88 So. 135.

The facts necessary to support count Z are: (1) Discovery by defendant's agent in charge of intestate's peril or immediate and dangerous proximity thereto, and (2) his negligence thereafter in failing to use all the means at hand properly and in order to avoid intestate's injury and death. The jury were authorized to find that the tendencies of negligence of defendant in that behalf, after discovery of the decedent's peril or dangerous proximity thereto, consisted in the failure to duly warn intestate of his peril, or in failure to stop or reduce the speed of the train in approaching the point of collision. The jury may have found or inferred from the evidence that intestate was driving his car along the public road, in advance of and in the direction from which the engine and train proceeded, in plain view of the engineer; that the highway on which he was driving was parallel with the railroad track, close thereto and clearly visible; that the intestate was driving his car to the point where the highway crossed the railroad track, and in so doing passed through the open gate of fencing along that highway, and at such crossing at a point 35 feet from the railroad track, he so entered upon such highway crossing and proceeded to the crossing over the railroad track as that only the back wheels of the automobile remained on the crossing and track, where it was struck by the engine causing his injury and death; that during this time (and at all times) defendant's engineer in charge was looking forward from his place on the engine and had one hand near or on the whistle cord and the other on the air-brake lever. There was a dispute in the evidence as to whether he did or did not sound an alarm to warn intestate of his immediate and impending peril from the approaching train. The evidence is undisputed that he did not reduce the speed or stop the train before the collision.

We have indicated there was evidence that intestate had his back to the train until he reached the point of crossing and turning therefor; and that he was unaware at all times, to the instant of collision, of the approach of the train. The jury might have further reasonably inferred that the engineer observed intestate as he proceeded; observed that he was ignorant of the approaching train, or that he was not reducing his speed as he approached the track, but did not sound the whistle or reduce the speed.

The point of collision was a public road or a long-used crossing--a fact well known to the engineer.

J.R. Hackworth, the engineer in charge, as a witness for plaintiff, stated that his engine was properly equipped and in good condition; that he was well acquainted with the situation; was going down grade to that crossing; the track was dry; that he was looking ahead and had been so looking from Cherokee "to where he struck the man"; that he had observed the traffic and was so doing "at that time"; that the train ran "thirty-three cars' length beyond the crossing where Sherrill was struck" and witness was forty feet west of the crossing when he first saw Sherrill's automobile; that his eyesight was good and it was broad daylight; that as he approached the crossing he was looking at the crossing; was looking "straight at that place." The track was straight at this point for 4 miles west of the crossing; he first saw the automobile as it was entering up on the track about 6 or 8 feet of the track, and he was about 40 feet from it, proceeding about 10 miles an hour; that he blew the "whistle as an alarm." The witness further stated that "there was no obstruction there to prevent" him seeing the automobile at the railroad track; that he could give signals at the same time he used the emergency brake, and he did both in this instance; that the engine struck the rear wheel of the left side of the automobile. At the time of the accident he was running about 40 miles an hour and "was keeping the lookout"; that before he reached this crossing his bell was ringing and had been ringing continuously for about a quarter of a mile; that the crossing was a private crossing, the railway track being fenced on both the north and south sides; that the grade started a little way west of the crossing and extended about a quarter of a mile east, is level about 60 or 100 feet; that as he ran through there he was keeping a lookout in front of the engine and did not "see anybody in the car," they were nearly on the track when he observed the car about 6 or 8 feet; the automobile did not stop after he saw it; he had his hand on the whistle before stopping; did not have his hand on it until he saw the automobile, but put his hand there when he saw the car and the emergency; did all a good engineer could do to slow up or stop a train; put sand on the track; did not reverse the engine as that would have done no good.

Mrs Roach, a witness for plaintiff, testified that she was in the back seat of the car at the time Mr. Sherrill was killed; nobody else was in the car but Mr. Sherrill and herself; that when she first saw the train it was 100 feet or over from them; her hearing was good on that occasion; that the whistle did not blow and the bell did not ring...