Southern Ry. Co. v. Bryan

• Citation: 28 So. 445,125 Ala. 297
• Parties: SOUTHERN RY. CO. v. BRYAN.
• Decision Date: 20 December 1899
• Court: Alabama Supreme Court

28 So. 445

125 Ala. 297

SOUTHERN RY. CO. v. BRYAN.

Supreme Court of Alabama

December 20, 1899

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Pearl O. Bryan, administratrix of the estate of Charles M Bryan, deceased, against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was brought for $30,000 damages for the killing of the plaintiff's intestate, which was alleged to have been caused by the negligence of the railway company. The complaint contained 14 counts. The plaintiff did not insist upon but the first, second, and third counts, and it is only necessary to set out these three counts in detail; the court having given the general affirmative charge in favor of the defendant upon each of the other counts of the complaint. These three counts were as follows:

"(1) The plaintiff claims of the defendant thirty thousand dollars, as damages, for that heretofore, to wit, on the 7th day of March, 1897, the defendant was a body corporate and, for the carriage of freight and passengers, was operating a railroad, running from the city of Birmingham Alabama, to the city of Columbus, Mississippi, the line of said road running through a suburb of Birmingham commonly called 'North Birmingham,' and on said 7th day of March, 1897, the Louisville & Nashville Railroad Company was also, for the carriage of freight and passengers, operating a railroad in said county, commonly known as the 'Birmingham Mineral Railroad,' which also passes through said suburb, North Birmingham, and crosses the defendant's railroad at or near said suburb, the crossing being known as the 'North Birmingham Crossing.' And the plaintiff avers that on said 7th day of March, 1897, her intestate was an engineer, in the service or employment of said Louisville & Nashville Railroad Company, and as such engineer had charge of an engine to which there was attached several cars, and was running said engine and cars on said Birmingham Mineral Railroad, and over and across defendant's said railroad at said North Birmingham crossing, and just as the engine, which plaintiff's intestate was running, got upon said crossing, one of defendant's trains, consisting of an engine and several cars, came along on defendant's said railroad towards Birmingham and ran into and collided with the engine which was being operated by plaintiff's intestate, wounding and scalding plaintiff's intestate, and inflicting several injuries upon him, from which he died within a few hours. And the plaintiff avers that the death of her intestate was caused by the negligence of defendant's employés, who were operating defendant's said train, in the running and management of said train, to plaintiff's damage thirty thousand dollars, as aforesaid, hence this suit.

"(2) The plaintiff claims of the defendant, thirty thousand dollars as damages for that heretofore, to wit, on the 7th day of March, 1897, the defendant was a body corporate, and for the carriage of freight and passengers was operating a railroad running from the city of Birmingham, Alabama, to the city of Columbus, Mississippi, the line of said road running through a suburb of Birmingham commonly called 'North Birmingham,' and on the 7th day of March, 1897, the Louisville & Nashville Railroad Company was, also, for the carriage of freight and passengers, operating a railroad in said county, commonly known as the 'Birmingham Mineral Railroad,' which also passes through said suburb, North Birmingham, and crosses the defendant's railroad at or near said suburb, the crossing being known as the 'North Birmingham Crossing.' And the plaintiff avers that on said 7th day of March, 1897, her intestate was an engineer, in the service of the said Louisville & Nashville Railroad Company, and as such engineer had charge of an engine to which cars were attached, and was running said engine and cars on said Birmingham Mineral Railroad, and over which and across defendant's said railroad at said North Birmingham crossing, and just as the engine which plaintiff's intestate was running got upon said crossing, one of defendant's trains, consisting of an engine and several cars, came along on defendant's said railroad towards Birmingham, and ran into and collided with the engine which was being operated by plaintiff's intestate, wounding and scalding plaintiff's intestate, and inflicting several injuries upon him, from which he died within a few hours. And plaintiff avers that the death of intestate was caused by the negligence of F. W. Mosby, who was operating the engine on defendant's said train, the said engineer's negligence consisting of this: That he failed to bring said train to a full stop within one hundred feet of said crossing, but suffered said train to run on without stopping until it ran into and collided with the train upon which plaintiff's intestate was riding, and inflicted said injuries upon plaintiff's intestate from which he died, as aforesaid, to plaintiff's damage, thirty thousand dollars, as aforesaid, hence this suit."

The third count was the same as the second count so far as the prefatory allegations were concerned, and the averments of negligence contained in said third count were as follows: "And plaintiff avers that the death of her intestate was caused by the negligence of the defendant's employés in charge of said train, in failing to have a sufficient headlight on the forward end of said train; and a failure to have a sufficient headlight prevented said engineer from seeing a sufficient distance ahead of the said train to enable him to discover the said Louisville & Nashville train within time to stop defendant's train before running into and colliding with the engine which plaintiff's intestate was operating; and the absence of such sufficient headlight caused defendant's engineer to run said train along until it collided with the engine which the plaintiff's intestate was operating, and inflicted said injuries upon plaintiff's intestate from which he died, as aforesaid, to plaintiff's damage thirty thousand dollars, as aforesaid, hence this suit."

The defendant demurred to the first count of the complaint upon the ground that the allegations of negligence therein were too general, and said count did not allege with sufficient certainty the negligence complained of. This demurrer was overruled, to which ruling the defendant excepted. The defendant then pleaded the general issue, and by pleas of contributory negligence set up in effect that the plaintiff's intestate, who was an engineer in charge of an engine on the Louisville & Nashville Railroad, was himself guilty of contributory negligence, in failing to stop his engine within 100 feet of the crossing, and in proceeding over the crossing without knowing that the way was clear, as required by the statute. The cause was tried upon issue joined upon these pleas.

It was shown by the evidence that the injury resulting in the death of plaintiff's intestate was caused by a collision between a train on the defendant's railroad and an engine and caboose on the Birmingham Mineral Division of the Louisville & Nashville road at a crossing of the two railroads in North Birmingham, Ala. It was further shown that the Birmingham Mineral Branch of the Louisville & Nashville Railroad extended from Boyle's station on the north to Bessemer on the south, and crossed at a right angle in North Birmingham the track of the Southern Railway, which ran in an easterly direction from Columbus, Miss., to Birmingham. The Louisville & Nashville engine had attached to it, only a caboose. The headlight was burning on the engine and in the rear, it being a switch engine; the plaintiff's intestate was the engineer upon this engine. The train on the Southern Railway was running as an extra train, and consisted of an engine and from 9 to 12 cars, including the caboose. The collision occurred at about 2 o'clock in the morning. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury many written charges, and separately excepted to the court's refusal to give each of them as asked; among these charges was the general affirmative charge in its behalf.

There were verdict and judgment for the plaintiff, assessing his damages at $8,000. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Smith & Weatherley, for appellant.

Lane & White, for appellee.

HARALSON J.

Section 3441 of the Code provides: "When the tracks of two railroads cross each other, engineers and conductors must cause the trains of which they are in charge, to come to a full stop within one hundred feet of such crossing, and not proceed until they know the way to be clear; the train on the railroad having the older right of way being entitled to cross first."

This statute, as it appeared in the Code of 1867 (section 1403) required these officers to come to a full stop within 50 feet of the place of crossing, and then to move forward slowly, the train of the elder road to have the privilege of crossing first. By the succeeding section (1404), it was provided that if these officers failed to comply with the requirements of the preceding section (1403) they should be deemed guilty of a misdemeanor, punishable on conviction by a fine of not less than $500 nor more than $1,000, and be imprisoned in the county jail not more than 12 months, at the discretion of the jury trying the cause. These two sections were carried substantially into the Code of 1876, as sections 1702 and 4257. When carried into the Code of 1886 ...