Southern Ry. Co. v. Smith

• Decision Date: 09 April 1912
• Parties: SOUTHERN RY. CO. v. SMITH.
• Court: Alabama Supreme Court

58 So. 429

177 Ala. 367

SOUTHERN RY. CO. v. SMITH.

Supreme Court of Alabama

April 9, 1912

Rehearing Denied May 1, 1912.

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

Action by Albert J. Smith, as administrator, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See also, 163 Ala. 174, 50 So. 390; 55 So. 913.

Count 4 alleges the discovery of plaintiff's intestate on the track, by the agents or servants of the defendant operating the train which killed it, in time to have avoided injuring her by the exercise of due care and preventive effort, and that, after a discovery of her peril, they negligently permitted or propelled said locomotive to run against plaintiff's intestate, killing her. The following charges were refused to the defendant: (4) "You may take the testimony of this railroad man, Wilson. You may take into consideration any interest which he might have that would in any way influence his testimony here; but no inference unfair to a man should be drawn because he is in the employ of a railroad company. You will take into consideration the testimony of the plaintiff, and then weigh up the testimony on both sides, and say where, in your judgment, the truth lies, and what your duty is in giving weight to the testimony." (1) "The court charges the jury that not-withstanding the deceased was a child, he was a trespasser on defendant's track at the time he was struck; and the engineer owed him no duty to keep a lookout." (2) "I charge you that the Smith child was a trespasser; and it was not the duty of the trainmen to keep a lookout for trespassers at the place where the child was killed." (9) "It was not the duty of the trainmen to keep a lookout for trespassers at the place where the child was when he was killed; and I charge you that he was a trespasser." (10) "The trainmen owed the deceased no duty to keep a lookout; and any negligence of the trainmen, sufficient to permit a recovery in this case, must have occurred after the child's presence on the track was discovered by them." (14) "The Smith child was a trespasser on the track; and the defendant's employés were not bound or required to keep any lookout for him at the place where he was killed."

L. E Brown, of Scottsboro, for appellant.

Virgil Bouldin, of Scottsboro, for appellee.

SIMPSON J.

This is an action for damages on account of the death of the six year old child of the plaintiff (appellee here), caused by its being run over by defendant's train of cars at or near Larkinsville, Ala. The case has been before this court twice before. Southern Railway Company v. Smith, 163 Ala 174, 50 So. 390, and Id., 55 So. 913.

On this trial, all of the counts of the complaint, except count 4, were eliminated; and the first insistence of the appellant is that the general affirmative charge should have been given for the defendant.

While it is clear from the evidence, as held in this case on former appeals, that the child was a trespasser on the track, and the defendant owed him no duty, save to avoid injuring him after discovery of his peril, yet the facts were before the jury as to the distance from the station to the place of the injury, the straightness of the track, the speed at which the train was moving, and...