Southern Ry. Co. v. Alsobrook, 8 Div. 313.

Citation223 Ala. 540,137 So. 437
Decision Date05 November 1931
Docket Number8 Div. 313.
PartiesSOUTHERN RY. CO. v. ALSOBROOK.
CourtSupreme Court of Alabama

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

Action for damages by A. P. Alsobrook against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

A. H Carmichael, of Tuscumbia, for appellant.

C. P Almon, of Florence, for appellee.

BROWN J.

This is an action on the case for personal injury and property damage resulting from a collision between plaintiff's automobile and defendant's train at a public street or road crossing in the city of Tuscumbia.

The complaint was in three counts. The first count ascribed the injury, in general terms, to the negligence of "the defendant, its agents, servants, or employees," without alleging that the agents, servants, or employees were acting within the line and scope of their employment; the second count, to willful and wanton conduct; and the third, to the negligence of the defendant company operating said train in "giving him (plaintiff) no warning by the ringing of a bell or the blowing of a whistle, and having no light on the rear end of said train where said coach or car was attached."

The court did not rule on the demurrer to the first and second counts, but the demurrer to the third count taking the point that said count shows that the plaintiff, himself, was guilty of contributory negligence, was overruled. The count avers, inter alia, "that as he (plaintiff) approached said crossing on said date and at said time he was driving his automobile at a reasonable rate of speed, and that he slowed his said automobile down practically to a stand still, and looked and listened for the approach of the train, and that he saw no train approaching, and heard no bell or whistle and saw no light of any approaching train, and that he proceeded to cross said tracks," etc. (Italics supplied.)

As the first excerpt taken from this count shows it counts on simple initial negligence-failing to give warning by ringing the bell or blowing the whistle, and by light on the rear end of the train-and construing the averments of the count most strongly against the pleader, it was subject to the objection pointed out in the demurrer. Louisville & Nashville R. R Co. v. Holland, 164 Ala. 73, 51 So. 365, 137 Am. St. Rep. 25; Atlantic Coast Line R. Co. v. Jones, 202 Ala. 222, 80 So. 44. The court therefore erred in overruling the de...

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7 cases
  • Dollar v. McKinney, 7 Div. 380
    • United States
    • Supreme Court of Alabama
    • May 29, 1958
    ...Burial Ass'n v. Huff, 241 Ala. 119, 1 So.2d 390; Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247; Southern R. Co. v. Alsobrook, 223 Ala. 540, 137 So. 437; Morgan-Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480; South Central Tel. Co. v. Corr, 220 Ala. 127, 124 So. 294; M......
  • Johnson v. Louisville & N.R. Co., 7 Div. 95.
    • United States
    • Supreme Court of Alabama
    • April 6, 1933
    ...... aware of his peril. Southern R. Co. v. Dickson, 211. Ala. 481, 100 So. 665. . . The. ...238, 16 L. R. A. (N. S.) 301; Southern R. Co. v. Alsobrook, 223 Ala. 540,. 137 So. 437. . . This. error was not ......
  • General Finance Corp. v. Bradwell, 1 Div. 242
    • United States
    • Supreme Court of Alabama
    • March 17, 1966
    ...Burial Ass'n v. Huff, 241 Ala. 119, 1 So.2d 390; Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247; Southern R. Co. v. Alsobrook, 223 Ala. 540, 137 So. 437; Morgan-Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480; South Central Tel. Co. v. Corr. 220 Ala. 127, 124 So. 294; M......
  • Railway Exp. Agency v. Burns, 6 Div. 745
    • United States
    • Supreme Court of Alabama
    • November 24, 1950
    ...in support of their insistence the following cases: Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247; Southern Ry. Co. v. Alsobrook, 223 Ala. 540, 137 So. 437; May v. Draper, 214 Ala. 324, 107 So. 862; Boshell v. Cunningham, 200 Ala. 579, 76 So. 937; Goldstein v. Leake, 138 A......
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