Southern Ry. Co. v. Stewart

• Decision Date: 13 January 1910
• Citation: 164 Ala. 171,51 So. 324
• Parties: SOUTHERN RY. CO. v. STEWART.
• Court: Alabama Supreme Court

51 So. 324

164 Ala. 171

SOUTHERN RY. CO. v. STEWART.

Supreme Court of Alabama

January 13, 1910

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

Action by Adelaide E. Stewart, administratrix, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 153 Ala. 51, 45 So. 51.

Paul Speake, for appellant.

Bilbro & Moody, for appellee.

SAYRE J.

Plaintiff's intestate, much intoxicated, after staggering along the defendant's track for some distance, laid down across the track, where a few minutes later a train ran over him causing instant death. The point at which he had lain down was about 60 feet from a road crossing. The road had in times past been maintained by the county, but had been abandoned many years before, and was not a public road. Defendant's trainmen were, therefore, under no duty, arising out of the proximity of the road, to keep a lookout for him. A. G S. R. R. Co. v. Fulton, 144 Ala. 332, 39 So. 282; Bentley v. Ga. Pac. Rwy. Co., 86 Ala. 484, 6 So. 37. After the return of this cause to the trial court on a former appeal (153 Ala. 133, 45 So. 51), evidently with the purpose of mending this phase of the case, count 4 was added, which charges "that the place where plaintiff's intestate was killed was constantly used by the public in traveling along said railroad and crossing the same at said public road crossing; that this travel was so frequent and in such numbers of people that the agents and servants of said train knew that at said place, and at the time said train was run at said place, persons were likely to be on said track." On the second trial there was evidence, it may be added, of a somewhat frequent use by the people of the neighborhood of both the railroad track by walking along it and of the road which crossed it by people passing along the latter, but none other to support the allegation that the road across the track was a public road. We may assume that it was competent for the jury, from such frequency of the use of the track as was shown, if known to the engineer in charge of the train, to infer that the engineer ought to have known of the presence of plaintiff's intestate upon the track--to find, in other words, a state of case which raised a duty on the part of the engineer to know his presence, the inadvertent neglect of which, and of the precautions indicated by ordinary care and prudence under such circumstances, not considering here negligence subsequent to the discovery of plaintiff's intestate on the track, would constitute simple negligence. To a charge of negligence, such as is here indicated, the undisputed gross negligence of the plaintiff's intestate would have been a complete answer, and for this reason, doubtless, no effort is made to charge it in the complaint.

In order to maintain the charge of wanton, willful, or intentional wrong brought against the defendant--leaving out of view just here any basis for such charge predicable of the engineer's conduct after actual discovery of the peril of the plaintiff's intestate--it was incumbent upon the plaintiff to prove that the engineer who was operating the defendant's train was at the time in fact acquainted with the conditions out of which the duty arose to know intestate's peril. No mere evidential presumptions can equal in this respect that conscious knowledge which is an essential element of wanton or intentional wrong. The cases holding the doctrine that wantonness may be inferred from the negligent operation of trains at places where the public are wont to pass frequently rest upon the assumption that such conditions may be the equivalent of actual knowledge of the presence and peril of the person injured. They therefore state as a necessary condition of the application of that doctrine that the fact of such frequent passing must be known to those in charge of the train. Duncan v. St. L. & San F. R. R. Co., 152 Ala. 118, 44 So. 418 and cases there cited. There are others to the same effect. Knowledge of the frequent use of a railroad track by pedestrians may, of course, be proved by circumstances; but knowledge of a fact is not to be inferred from the fact alone. In the case of Central of Ga. Rwy. Co. v. Partridge, 136 Ala. 587 34 So. 927, answering a charge of wanton or intentional wrong, the defendant insisted...