Southern Ry. Co. v. Shipp

• Decision Date: 26 February 1910
• Citation: 53 So. 150,169 Ala. 327
• Parties: SOUTHERN RY. CO. v. SHIPP.
• Court: Alabama Supreme Court

53 So. 150

169 Ala. 327

SOUTHERN RY. CO. v. SHIPP.

Supreme Court of Alabama

February 26, 1910

Rehearing Denied June 30, 1910.

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

Action by C. W. Shipp, as administrator, for damage for death of intestate, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The facts sufficiently appear from the opinion. The counts of the opinion, allege negligence as follows: (1) "That while said train was standing still at said depot and station plaintiff's intestate, a minor six years of age, started across the track at the rear end of the train to go to the depot at said station; and plaintiff avers that, as his intestate started across said track, the agents and servants of defendant in charge of said train willfully, wantonly, or intentionally backed said train on intestate and killed him." (2) "That the servants and agents of the defendant then and there in charge of said train, without warning or signals that they were going to back said train negligently backed said train suddenly and violently on plaintiff's intestate and killed him, and the death of plaintiff's intestate was proximately the consequence of said negligence." (3) Alleges "that the servants or agents knew, or by the exercise of reasonable care and prudence could have known, of the attempt of plaintiff's intestate to cross the tracks, and so knowing, and without warning or signal, negligently backed the train," etc. (4) Alleges the frequent and continuous use of the way for many years to the knowledge of defendant's servants and agents of such use of the way, and the negligent backing of the train without warning. (5) Practically the same as 4. (6) Practically same as 4. Complaint A states the same facts as inducements, with the additional allegation that, in going to and returning from the depot, people were accustomed to cross the track of said railroad at the point at which plaintiff's intestate was killed, with such frequency and in such numbers as it was likely that persons could be on the track in passing around said freight train while it was stopped at that depot; that the servants and agents of the defendant knew of this fact, and knew that it was likely that some person would be on the track of the said railroad around the rear of said train, while said train was at the depot; but, notwithstanding this knowledge, said servants or agents in charge of the train, in reckless disregard of the safety of such persons, and without any signal or warning suddenly and violently backed said train, etc.

The following charges were refused to the defendant: (A) "Although a person approaching a railroad track has a right to cross the track, yet it is his duty, before attempting to cross, to stop, look, and listen for approaching trains, and if he sees a train approaching, or ready to move, it is his duty to let it pass before attempting to cross." (5) "Under the evidence in this case, I charge you that, under the statutes of Alabama, defendant was not required to blow the whistle or ring the bell before backing said train."

Paul Speake and Lawrence D. Brown, for appellant.

Bilbro & Moody, for appellee.

MAYFIELD J.

This is an action by the administrator under the homicide statute to recover damages for the wrongful death of plaintiff's intestate, who was his son, a child of about six years of age. The child was killed in the town or village of Hollywood, by one of defendant's freight trains while backing, and was killed just after the train had started; it had moved backwards only a few feet when it struck the father and child just as they were in the act of crossing the track. Plaintiff and his little son had come from their home some distance in the country to the town of Hollywood, which seems to have been their market and post office. They had been over to the post office and were going across defendant's track to its depot, at that place, and were traveling a path which led from one building to the other and crossed the track diagonally. As they approached the freight train it was standing on the track with engine attached, the train having pulled into the town just shortly before. When plaintiff and his son reached the train, it being still, they walked along the side of the cars to the rear end of the train and had just started across the track on reaching the end of the last car when the train started backwards, striking both and killing the son. The path they were traveling at the time was one commonly used by the public, and seems to have been known as such to the agents or train crew of defendant, or at least the use was so common, long continued, and frequent as to charge them with notice. There was no direct evidence that any of the train crew saw plaintiff or his son at the time of, or just before, the injury. The trial resulted in a verdict and judgment for the plaintiff, in the sum of $5,000, from which defendant appeals.

The first error insisted upon is the overruling of defendant's demurrers to each count of the complaint as amended. Errors are assigned separately to each count; but they are properly argued together, and we will so treat them. In them, practically the same defects are insisted as inhering in each of the counts, to wit, first, that each failed to show any duty upon defendant or its agent to keep a lookout at the time and place of the injury; second, that it failed to show a duty to give warning that the train would be backed; third, that it failed to show that the omission to give the signals was the proximate cause of the injury. We do not think that any...