Southern Ry. Co. v. Shelton

• Decision Date: 09 April 1903
• Citation: 136 Ala. 191,34 So. 194
• Parties: SOUTHERN RY. CO. v. SHELTON.
• Court: Alabama Supreme Court

34 So. 194

136 Ala. 191

SOUTHERN RY. CO. v. SHELTON.

Supreme Court of Alabama

April 9, 1903

Appeal from Circuit Court, Mobile County; Wm. S. Anderson, Judge.

Action by James A. Shelton, as administrator of the estate of Edward H. Shelton, deceased, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Shelton was run over and killed on the night of the 23d of January 1900, at about 7 o'clock. The complaint contained 46 counts, a number of which were stricken out upon demurrer and by amendment, leaving at the time of the trial the 1st, 4th 10th, 14th, 16th, 19th, 21st, 22d, 23d, 44th, and 46th counts. The 1st count of the complaint alleges that the defendant, in the operation of its engine along its track at the corner of Water and Beauregard streets, in the city of Mobile, negligently run over and killed plaintiff's intestate. The negligence averred in the 4th count was that the engine was moved around a curve up to the place at which plaintiff's intestate was killed, after nightfall, and across and upon the public streets of the city of Mobile without having any light cast upon the track, or a flagman ahead of the engine. The negligence averred in the 10th count was that in the operation of the engine the defendant company "negligently run over and killed Edward H. Shelton, of whose estate the plaintiff is the administrator, and who was then and there upon a public street of the city of Mobile," etc. The negligence averred in the 14th count was that the defendant company employed a person whose duty it was, under such employment, to be in front of its engine or cars when the same were being operated at the place where the injury occurred, and to warn all persons on or near the track of the approach of the engine and cars, and that the person so employed neglected to warn the said Shelton although the said Shelton was then upon or about to go upon said track, which was in the public street of the city of Mobile, and was in great danger of being stricken by said engine. The negligence averred in the 16th count of the complaint was that the engineer in charge of the engine failed to keep a proper lookout. The negligence averred in the 19th count is that the track was so constructed that a person upon the track at the point where said Shelton was killed could not be seen by the engineer or fireman upon said engine in the night at a sufficient length of distance to enable the engine to be stopped before reaching him when approached at the speed at which the engine was moving. In the 21st count of the complaint an ordinance of the city of Mobile was set out, requiring the Mobile & Birmingham Railroad Company to place a flagman in front of its engine or cars when about to cross Water street or Beauregard street and it was averred that the defendant was then and there operating an engine and cars over the track of the Mobile & Birmingham Railway Company under a lease by which the defendant had control of the Mobile & Birmingham Railway Company, and had assumed its duties and obligations; and the negligence averred in said complaint was that the defendant operated the engine and cars across Water street on Beauregard street, at the time of the accident complained of, without having any flagman in front thereof, as required by said ordinance, and that such negligence was the proximate cause of the injury complained of. In the 22d and 23d counts the ordinance referred to above is set out, and the averment of the lease is made; and in the 22d count the negligence alleged was that the defendant was operating the train across Water street on Beauregard street without having a flagman so stationed; and in the 23d count the negligence alleged was that the flagman, whose duty it was to be in front of the engine or cars, and to warn all persons on or near the track of the approach of said engine and cars, neglected to warn the said Edward H. Shelton of the approach of said engine and cars. The 44th count charges wanton negligence, in that the defendant wantonly ran over and killed Edward H. Shelton. The 46th count sets out the ordinance referred to, and avers that the injury was the proximate result of the negligence of the engineer in charge of the train, in that he operated the train across Water street without a flagman stationed ahead of the train as required by said ordinance. The defendant pleaded the general issue and three special pleas, the substance of which is sufficiently shown in the opinion.

The plaintiff's evidence tended to show that Shelton, the deceased, was run over and killed at or near the crossing of Beauregard and Water streets about 7:15 o'clock on the night of January 3, 1900; that a short time before he was run over he was at the Mobile & Ohio Docks, which are east of the scene of the accident; that he left said docks, stating that he was going home; and that the last seen of him by one of plaintiff's witnesses was by the witness Connors, who saw him as he was going up Beauregard street, near Commerce street. It was shown that the train which ran over Shelton came around a curve in the defendant's road from Commerce street to Water street; that the engine was moving in a westerly direction or northwesterly direction--in nearly the same direction as Shelton was going. None of plaintiff's witnesses saw the accident. The only person who saw the accident was the witness Harrison Baker, who was introduced as a witness for the defendant, and tetified that he was standing a short distance west of Water street, on Beauregard street, and saw the engine approaching; that he stopped to let the engine and cars attached pass; that he saw Shelton, who was standing about 15 feet from him, attempt to step upon the footboard of the tender attached to the engine, when he fell, and was run over and killed.

The plaintiff filed interrogatories to the defendant, under the statute, which interrogatories the defendant answered through its yard master, B. F. Turner, and the brakeman, H. A. Roach. On November 15, 1901, after there had been a mistrial in the case, the defendant moved the court to allow it to amend its answers filed to said interrogatories by striking out certain portions of the answers of said Turner and Roach, which answers sought to be stricken were about facts of which Turner and Roach did not have personal knowledge, but their answers were based upon information derived from the engineer and fireman in charge of the engine; and the motion further asked that said answers be further amended by adding thereto the statements or answers of the engineer and fireman as to such facts. The court refused to allow the amendment asked, and overruled the motion, and to this ruling the defendant duly excepted. 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 court, at the request of the plaintiff, gave to the jury the following written charges:

"(b) The court charges the jury that if they believe from the evidence that it was unreasonably dangerous to operate a train at the point where it is claimed that Edward H. Shelton was killed, without having a flagman or switchman stationed in front of the engine, and that it was, for that reason, the duty of the switchman or flagman to be in front of the engine, irrespective of the ordinance introduced in evidence, and that the defendant's said switchman or flagman neglected to be at his place of duty, and that this was the proximate cause of the injury, you must find for the plaintiff, irrespective of where the injury occurred, unless you find the deceased was guilty of contributory negligence, or was at the time of the injury a trespasser upon property in the possession of the defendant."

"(46) The court charges the jury that if they believe from the evidence that there was an ordinance of the city of Mobile as is described in the complaint, and that the defendant company operated its train along the track of the Mobile & Birmingham Railroad Company under a lease from it, at the point where the said track crosses Water street at its intersection with Beauregard street, and if the jury further believe from the evidence that in doing so the said engine was run against the said Edward H. Shelton, so as to injure and kill him, and that said accident was the proximate result of negligence on the part of the engineer in charge of said engine in operating said engine across Water street without a flagman being stationed ahead of the train as required by the ordinance, they must find for the plaintiff, unless they further find from the evidence that Edward H. Shelton was himself guilty of contributory negligence."

"(a) The court charges the jury that if they believe from the evidence that there was in force an ordinance such as is described in the complaint, and that the intersection of Beauregard and Water streets was a public crossing much frequented by the citizens of Mobile, and that all these facts were known to the engineer in charge of the defendant's engine, but that he nevertheless willfully operated said engine over that crossing without complying with said ordinance, at a time when he knew that some person would likely be upon said track at that point, or sufficiently near thereto to be hit by the engine in passing, and in a manner that he knew was likely to cause them to be so hit, this amounted to a wanton wrong, and, if it was the proximate cause of the death of Edward H. Shelton, the plaintiff is entitled to recover."

"(19) The court charges the jury that if they believe from the evidence that the defendant company killed Edward H. Shelton by running its engine upon him at the point described in the

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