Southern Ry. Co. v. Crenshaw

• Decision Date: 22 January 1903
• Citation: 34 So. 913,136 Ala. 573
• Parties: SOUTHERN RY. CO. v. CRENSHAW. [a1]
• Court: Alabama Supreme Court

34 So. 913

136 Ala. 573

SOUTHERN RY. CO. v. CRENSHAW. ^[a1]

Supreme Court of Alabama

January 22, 1903

Appeal from Circuit Court, Morgan County. H. C. Speake, Judge.

Action by A. J. Crenshaw, as administrator of Caroline Turner deceased, against the Southern Railway Company, to recover damages for the death of the deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint, as amended, contained seven counts, but the sixth count was subsequently withdrawn. The averments of negligence in the remaining counts of the complaint, as amended, were as follows: In the first count, after averring the operation by the defendant of a railroad on the line of road in and through the incorporated town of Courtland, it was averred that over and across a street in said town the agents and servants of the defendant ran a passenger train "at a high rate of speed without first having given warning of the approach of said locomotive and train of cars by blowing the whistle or ringing the bell thereof, as the law requires, and that while crossing said street in said manner said agents or servants negligently and carelessly ran said locomotive upon and against plaintiff's intestate," inflicting the injuries from the results of which she died. In the second count of the complaint it was averred that "at a public road crossing near the eastern boundary of the town of Courtland" the agents or servants of the defendant ran the passenger train along its road, which was crossed by said public road, and "negligently failed to blow the whistle or ring the bell at least one-fourth of a mile before reaching said crossing, and to continue blowing the whistle or ringing the bell at short intervals until it had reached and passed said crossing, and by reason of such negligent failure of defendant's agents and servants to so blow the whistle or ring the bell said locomotive was carelessly run upon and against said Caroline Turner at said public road crossing," inflicting the injuries from the effects of which plaintiff's said intestate died. In the third count of the complaint it was averred that the plaintiff's intestate was willfully and wantonly killed "within a suburb of the town of Courtland where a street, road, or way much traveled and thronged by the public crossed defendant's track at or nearly on a level with the adjacent territory, and where defendant's employés knew that travelers, pedestrians, and the public generally were accustomed to pass and repass from one to another part of the town, suburbs, and adjacent territory," and it was averred that "the defendant, by its agents and servants with a reckless disregard of the probable consequences of its acts, failed to blow the whistle or ring the bell within one-fourth of a mile of said crossing, and to continue the blowing of the whistle or ringing of the bell at short intervals until it had been reached and passed, and willfully and wantonly, or with a reckless indifference as to probable consequences, rushed and drove an engine with cars attached over said crossing at a reckless rate of speed of 35 or 40 miles an hour, and willfully and wantonly struck plaintiff's intestate, Caroline Turner, at and on said crossing," inflicting the wounds from the effects of which she died. In the fourth count of the complaint the plaintiff claimed damages "for the willful and wanton killing of plaintiff's intestate, Caroline Turner, at a public road crossing near the eastern corporate limits and in a suburb of the town of Courtland"; and it was averred in said count that while the plaintiff's intestate was attempting to cross defendant's railroad track at a public road crossing just outside the corporate limits of said town she was struck by a locomotive, receiving the wounds from which she died, and that "said injury was inflicted upon said Caroline Turner through the willful reckless, and wanton acts of defendant's agents and servants, in this: that the said public road crossing was one at which great numbers of people were, and had for several years been, continuously passing on foot, horseback, and in vehicles, and was at a populous locality, all of which was well known to defendant and to its agents and servants, and with such knowledge defendant's agents and servants without ringing the bell or blowing the whistle, approached and crossed said crossing at a highly dangerous rate of speed, to wit, about forty miles per hour, and with a reckless disregard of the peril of said Caroline Turner, and of such of the community in general as might be approaching or traversing said crossing, ran said locomotive at such rate of speed upon and against said Caroline Turner while crossing said railroad track at said public road crossing, inflicting upon her wounds from which she then and there died." In the fifth count of the complaint the place of the killing was alleged as in the fourth count of the complaint, and it was then alleged that while the plaintiff's intestate was attempting to cross defendant's railroad track at a public road crossing just outside of the corporate limits of said town she was struck by a locomotive, receiving the wounds from which she died, and that said injury was inflicted upon said Caroline Turner "through the willful, reckless, and wanton acts of defendant's agents and servants, in this: that the said public road crossing was one at which great numbers of people were, and had for several years been, continually passing on foot, horseback and in vehicles, and was at a populous locality, all of which was well known to defendant and to its agents and servants and with such knowledge defendant's agents and servants, without ringing the bell or blowing the whistle, approached and crossed said crossing at a highly and dangerous rate of speed, to wit, about forty miles per hour, and with a reckless disregard of the peril of said Caroline Turner, and of such community in general as might be approaching or traversing said crossing, ran said locomotive at such rate of speed upon and against said Caroline Turner while crossing said railroad track at said public crossing, inflicting upon her wounds from which she then and there died. And defendant's agents and servants then and there knew, and were presently conscious of the fact, that it was probable and likely that some person or persons were exposed to peril at said crossing, and were conscious of the fact that they were omitting to take usual and proper precautions to avoid injuring or slaying such persons, and with a full consciousness of such facts as aforesaid ran said train against plaintiff's intestate, so that she died." In the seventh count of the complaint it was averred "that said killing was occasioned by a...