Southern Ry. Co. v. Hyde

• Decision Date: 16 December 1909
• Citation: 51 So. 368,164 Ala. 162
• Parties: SOUTHERN RY. CO. v. HYDE.
• Court: Alabama Supreme Court

51 So. 368

164 Ala. 162

SOUTHERN RY. CO. v. HYDE.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.

Action by John F. Hyde, administrator of Robert Hyde, deceased against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The counts on which the trial was had were as follows:

(2) "The plaintiff, John F. Hyde, as administrator of the estate of Robert Hyde, deceased, claims of the defendant Southern Railway Company, a corporation, the sum of $25,000 damages, for that on and prior to the 16th day of July, 1907 the defendant owned and operated a railroad from Memphis, in the state of Tennessee, to Stevenson, in the state of Alabama, upon and over which the defendant ran engine and cars, propelled by steam, for the transportation of freight and passengers for hire, and that said railroad was laid upon and ran through a public street in the city of Tuscumbia Ala.; that on the 16th day of July, 1907, plaintiff's intestate was lawfully crossing said railroad in said public street in said city of Tuscumbia, the station of defendant's said railroad, and the defendant's agents and servants, while engaged in running and entering upon, in, and over said railroad in said corporate limits of said city of Tuscumbia, Ala., and in the conduct of the business of the defendant, then and there wantonly or intentionally ran said engine against plaintiff's intestate, Robert Hyde, thereby causing his death."

(4) Same as 2, down to and including the words, "freight and passengers for hire," and adds: "And that on the night of the said 16th day of July the agents and servants of the defendant wantonly propelled said engine on the tracks of the defendant on and along a public street in the corporate limits of the city of Tuscumbia, Ala., at a time when and a place where people were wont to cross and recross said street in great numbers and with frequency, and said engine was then and there by said agents and servants of defendant wantonly run backwards at a high rate of speed, to wit, a rate of about 15 miles per hour, and in the nighttime, with no light on the rear end thereof, that was moving forward, and without giving any signals of approach; and the said engine, while being run as aforesaid by the agents and servants of the defendant at the time and place aforesaid, was propelled on and against plaintiff's said intestate, Robert Hyde, who was attempting to cross said public street at the place aforesaid, and the said Robert Hyde was then and there crushed and killed. And plaintiff avers that said agents and servants of the defendant who were in charge of said engine knew, at the time they propelled said engine along said street in the city of Tuscumbia as aforesaid, that people then and there crossed and recrossed said street in great numbers and with frequency, and that injury would likely or probably result to some of said people so crossing and recrossing said street; yet the said agents and servants of the defendant, with reckless indifference to the safety of said people crossing and recrossing said street as aforesaid, intentionally propelled said engine backwards at a high rate of speed as aforesaid, to wit, about 15 miles per hour, without giving any signals of approach, and without any light on the forward end of the engine, and, while so propelling said engine, ran the same on and against plaintiff's intestate, the said Robert Hyde, who was then and there attempting to cross said street, whereby plaintiff's said intestate was crushed and killed. And plaintiff avers that the said conduct of the said agents and servants of the defendant in running said engine in the manner aforesaid at the time and place aforesaid on and against plaintiff's said intestate was reckless and wanton."

Paul Speake, for appellant.

James Jackson and George P. Jones, for appellee.

MAYFIELD J.

Plaintiff's intestate was killed by one of defendant's locomotives. The accident occurred in one of the public streets in the city of Tuscumbia. The railroad track at the place of the injury was laid along the public street. The engine which killed intestate was moving along this street; it being at the time much traveled by the public. The engine was engaged in doing some switching. The evidence is in conflict as to whether there were any freight cars attached to the locomotive, and also as to the speed of the engine at the time it struck intestate--some of it tending to show that the engine was moving at the rate of 10 or 12 miles per hour and some at 3 or 4 miles. The accident occurred at about 10 o'clock at night. The evidence is in conflict as to whether or not there was a light on the engine at the time of the accident. An ordinance of the town was introduced in evidence, which limited the speed of trains within the city boundaries to six miles when moving forward, and to four when moving backwards. Intestate was crossing the street diagonally when stricken by the engine. The jury returned a verdict for plaintiff, and assessed his damages at $10,000. From a judgment of the court rendered thereon, and judgment overruling and denying defendant's motion for a new trial, defendant prosecutes this appeal.

The original complaint contains several counts; some declaring on simple negligence, and others on wanton negligence and willful injury. All the counts were eliminated except Nos. 2 and 4, which declared on wanton negligence or willful injury. It is unnecessary on this appeal to review the rulings of the trial court upon the counts thus eliminated and upon which the trial was not had. Counts 2 and 4 were...