Southern Ry. Co. v. Williams

Decision Date09 February 1905
Citation38 So. 1013,143 Ala. 212
PartiesSOUTHERN RY. CO. v. WILLIAMS.
CourtAlabama Supreme Court

Appeal from City Court of Birmingham; Wm. W. Wilkerson, Judge.

Action by Allen Williams, as administrator of Sam Williams deceased, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

S. P Bradley and Bowman, Harsh & Beddow, for appellee.

DOWDELL J.

The appellee, Allen Williams, as administrator, sued the Southern Railway Company to recover damages for the alleged negligent killing of plaintiff's intestate, one Sam Williams. The complaint contained five counts; the first four being predicated upon simple negligence, and the fifth upon intentional wrong. With this last count we have nothing to do, since no questions are raised on it. In each of the first four counts it is averred that the injury complained of occurred at the crossing of the defendant's railroad tracks with the tracks of another and different railroad. In the first and third counts the alleged negligence is averred as follows: "* * * And negligently crossed or allowed said train to run into or against a train upon the track of said other railroad at said crossing, so that said trains were derailed," etc., whereby, as a proximate consequence, etc., plaintiff's intestate, etc., was killed. In the second and fourth counts the alleged negligence is stated as follows: "* * * And the defendant negligently failed to cause said train to come to a full stop within 100 feet of said crossing, or negligently caused or allowed said train to proceed before the way was clear, and as a proximate consequence thereof said train collided with another train upon said crossing," etc whereby, as a proximate consequence, etc., the plaintiff's intestate was killed. In the first and second counts it is averred that at the time of the alleged negligent act of the defendant, causing the injury complained of, the plaintiff's intestate "was near by, but not upon, the railroad upon which defendant was operating said train as aforesaid," etc. In the third count it is averred that the said injury was inflicted "while he [plaintiff's intestate] was in the act of crossing, or about to cross, the said railroad upon which defendant was operating said train as aforesaid"; while in the fourth count the averment is, "while he [plaintiff's intestate] was engaged in or about crossing the railroad upon which the defendant was operating said train as aforesaid." To the several counts of the complaint demurrers were interposed by the defendant, and the same were overruled by the court. Thereupon the defendant filed pleas numbered from 1 to 8 inclusive. Demurrers were sustained to the fourth, sixth, seventh, and eighth. A trial was then had upon issue joined upon the other pleas, resulting in a verdict and judgment in favor of the plaintiff. Upon the conclusion of the evidence, the same being without conflict the trial court, at the request of the plaintiff in writing, gave the jury the general charge, with hypothesis to find for the plaintiff, and refused a like charge requested by the defendant in its favor; also, the general charge as to each of the counts separately, except as to the fifth count, and as to which the general charge was given in favor of the defendant. Other charges were refused to the defendant, but they do not call for our consideration, not being insisted on in argument. As but one question is insisted on in argument by counsel for appellant, we need not consider the rulings of the court on the demurrers to the complaint and the pleas separately. The one question insisted on was sought to be raised by the demurrers, and on charges requested to the jury.

The facts, as shown by the undisputed evidence, were as follows: The defendant operated a railroad which intersected or crossed the Louisville & Nashville Railroad; the latter road running north and south, and the former east and west. Plaintiff's intestate was walking along a path on the east side of, and parallel with, and close to, the track of the Louisville & Nashville Railroad, and going north to his place of business at the Birmingham Fertilizer Works, which were located near the Louisville & Nashville Railroad, north of the crossing of the two railroads. When plaintiff's intestate approached the crossing, a freight train of the Louisville & Nashville, going north, was making the crossing; and, continuing his journey along the path, he passed over the track of the defendant company, and, according to the varying estimates of witnesses, had gone anywhere from 15 to 50 feet beyond defendant's track, when a train on defendant's road, going from west to east, ran into the Louisville & Nashville train, cutting the same in two parts, demolishing one of the cars, and derailing and turning over another, which latter fell upon and killed said intestate. The defendant's train made no stop for the crossing, as required by the statute, but proceeded in violation of the same, though it is not pretended that defendant's servants, in the management of said train, had any knowledge of said intestate's proximity to said crossing. With this statement of the facts, we proceed to a consideration of the question presented and argued by counsel.

Counsel for appellant, in his brief, thus states the question involved: "The real point at issue between plaintiff and defendant was, and is, whether or not the failure to comply with the statute (section 3441 of the Code of 1896), under the circumstances of this case, was such a negligent failure of duty towards plaintiff's intestate as to constitute a legal cause of action in the plaintiff." Pretermitting consideration of any common-law duty, which under the circumstances of this case may have rested on the defendant independent of the statutory duty, since perhaps there may be no distinction in principle between a duty imposed by statute and one imposed by the common law as to the violation of either constituting an act of negligence, we will consider the question as presented by counsel. Section 3441 of the Code reads as follows: "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." Section 3443 is as follows: "A railroad company is liable for all damages done to persons or to stock or other property, resulting from a failure to comply with the...

To continue reading

Request your trial
19 cases
  • Birmingham Ry., Light & Power Co. v. Jones
    • United States
    • Alabama Supreme Court
    • November 21, 1907
    ... ... 470, 26 So. 168; L ... S., etc., R. Co. v. Clark, 41 Ill.App. 343; ... Morrisey's Case, 126 Mass. 377, 30 Am. Rep. 686; ... Williams' Case, 69 Miss. 631, 12 So. 957; Crystal's ... Case, 105 N.Y. 164, 11 N.E. 380; Foley's Case, 78 Hun, ... 248, 28 N.Y.S. 816; Goodman's Case, 116 ... fact that he could have seen him if he had looked did not ... authorize the inference that he did look and see him." ... And in Southern Railway Co. v. Bush, 122 Ala. 470, ... 487, 26 So. 168, 173, in respect to this question, the court, ... speaking through Tyson, J., said: ... ...
  • Merchants' Bank v. Sherman
    • United States
    • Alabama Supreme Court
    • December 16, 1926
    ... ... & R. Co. v. Smith, ... 171 Ala. 251, 255, 55 So. 170; Dwight Mfg. Co. v ... Holmes, 198 Ala. 590, 73 So. 933; So. Ry. Co. v ... Williams, 143 Ala. 212, 217, 38 So. 1013." ... The ... relation of privity of the parties and the declared purpose ... of the statute or public ... ...
  • Parchman v. Mobile & O. R. R. Co.
    • United States
    • Mississippi Supreme Court
    • May 24, 1926
    ... ... See, also, ... Birmingham Ry., Light & Power Co. v. Jones, 153 Ala ... 157, 45 So. 177, following the decision in Southern Ry. v ... Williams, 143 Ala. 212, 38 So. 1013 ... Furthermore, ... the prima-facie statute, section 1645, Hemingway's Code, ... does ... ...
  • Alabama Power Co. v. Bass
    • United States
    • Alabama Supreme Court
    • December 6, 1928
    ... ... street occupied by its tracks, either as against other ... vehicles or pedestrians. B.R.L. & P. Co. v ... Williams, 158 Ala. 381, 48 So. 93. That there was a ... reasonable probability that it would be used by other ... vehicles, and it was likewise reasonably ... the zone of danger arising from collisions resulting from ... operating street cars at an excessive rate of speed ... Southern Ry. Co. v. Williams, 143 Ala. 212, 38 So ... 1013; A.G.S.R.R. Co. v. Chapman, 80 Ala. 615, 2 So ... 738; Illinois Cent. R.R. Co. v. Camp, 201 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT