Southern Ry. Co. v. Bush

• Decision Date: 30 May 1899
• Citation: 26 So. 168,122 Ala. 470
• Parties: SOUTHERN RY. CO. v. BUSH ET AL.
• Court: Alabama Supreme Court

26 So. 168

122 Ala. 470

SOUTHERN RY. CO. v. BUSH ET AL.

Supreme Court of Alabama

May 30, 1899

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by E. L. Bush and another, administrators, against the Southern Railway Company, for damages. There was a judgment for the plaintiffs, and defendant appeals. Reversed.

The complaint claimed $25,000 damages for the alleged wrongful killing of plaintiffs' intestate by being run over and crushed by a locomotive engine operated on the defendant's railroad by the defendant's engineer. The complaint, as amended, contained 15 counts. After demurrers were sustained to the several counts, the cause was tried upon the first, tenth, twelfth, fourteenth, and fifteenth counts. The first count was as follows: "The plaintiffs E. L. Bush and J. W. Prewitt, as administrators of the estate of Ora L. Bush, deceased, claim of the defendant the sum of twenty-five thousand dollars damages for negligently causing the death of plaintiff's intestate, said Ora L. Bush, on to wit, the 22d day of December, 1895, by negligently carelessly, and willfully running over and upon said intestate, and striking him with a locomotive, which defendant, its servants and agents, then and there negligently, carelessly, and willfully drove and ran along the line of defendant's railway at or near Sloss Furnaces, in the village of North Birmingham, Jefferson county, Alabama, and thereby crushing, wounding, and mangling said intestate so that by reason thereof, on said day, he died. And the plaintiffs aver that on said date defendant was operating a line of railway, and propelling locomotives and cars thereon by means of steam, through said county, and running through the town or village located at and around said Sloss Furnaces, and that defendant's servants or agents on said day were running a locomotive through said town or village, and carelessly and negligently and willfully and wantonly failed and neglected to blow the whistle or ring the bell of said locomotive while passing through said town or village, or at the crossings thereof, immediately before striking and killing said Ora L. Bush as aforesaid. The plaintiffs aver that on the 22d day of February, 1896, they were duly appointed by the probate court of said county administrators of the estate of said Ora. L. Bush deceased." The tenth count is copied in the opinion. The twelfth count, after alleging the fact that the plaintiff's intestate was upon the track of the defendant, on the middle of a trestle, where he was seen by the defendant's servants in charge of said locomotive in ample time for them, by the use of ordinary diligence, to have stopped said locomotive before reaching the trestle then averred "that it was apparent to the servants of defendant in charge of said locomotive that plaintiff intestate could not get off of the trestle without being seriously hurt, and could not get out of the way of said locomotive unless the same should be stopped before striking him, and that notwithstanding that the perilous position of said Ora L. Bush was apparent to the servants and agents of defendant in charge of said locomotive long before reaching him and striking him, and in ample time for said servants, by the use of ordinary care, to have stopped said locomotive before striking said Ora L. Bush, still said servants in charge of said locomotive negligently carelessly, recklessly, willfully, and wantonly continued to run said locomotive along said track towards said Ora L. Bush at a dangerous and rapid rate of speed until said locomotive ran against said Ora L. Bush and killed him." The fourteenth count was as follows: "The plaintiffs, E. L. Bush and J. W. Prewitt, as administrators of the estate of Ora L. Bush, deceased, claim of the defendant, the Southern Railway Company, a corporation, twenty-five thousand dollars damages, for that heretofore, prior to and at the time of the grievances herein complained of, the defendant was operating a railroad for the transportation of freight and passengers by means of steam locomotive engines and cars through the village of North Birmingham, Jefferson county, Alabama; that a stream runs through and divides said village, which is known as 'Village Creek'; that a trestle was constructed over and across said stream, on which the defendant operated its said railroad, said trestle being constructed over said stream in said village, and being quite one hundred and eighty feet long and eleven feet high. The population of said village averaged, at the time of the commission of the said grievances, from three to four hundred inhabitants, and lived on both sides of said creek and trestle, and the deceased was an inhabitant of said village. On 22d December, 1895, in the pursuit of the necessities of business and of the intercourse between the population of said village, and in accordance with the custom or usage to cross said trestle as aforesaid, the deceased commenced to cross said trestle from the eastern to the western side of the same; and, while deceased was crossing the same, the defendant, knowing the perilous condition of deceased, and knowing that he could no extricate himself from such peril without endangering his life or loss of limb, or incurring great bodily harm, wantonly, willfully, or intentionally run its engine over deceased, and mangled him so that he died, because of such injuries, within three hours; hence this suit. Plaintiffs aver that on 22d February, 1896, they were appointed administrators of the estate of said Ora L. Bush. deceased, by the probate court of Jefferson county, Alabama." The fifteenth count was in substance the same as the fourteenth. To each of the counts of the complaint the defendant demurred upon the following grounds: "(1) Because each of said counts fails to aver or show with sufficient certainty that the defendant, or its servants, were guilty of wantonly, willfully, or intentionally causing the death of plaintiffs' intestate; (2) because each of said counts fails to aver or show with sufficient certainty the facts or circumstances constituting the alleged wrongful conduct or omission of defendant or its servants; (3) because each of said counts fails to aver or show with sufficient certainty that the wrongful acts or omissions complained of proximately caused the death of plaintiffs' intestate." This demurrer to each of the counts was overruled, and the defendant duly excepted. The defendant pleaded the general issue, and several pleas setting up contributory negligence. The plaintiffs demurred to each of the several pleas setting up contributory negligence of plaintiffs' intestate, upon the ground that in each count of the complaint the cause of action was predicated upon the alleged willful, intentional, wanton, and reckless negligence on the part of the defendant, its servants an agents, and the plea of contributory negligence is no answer to such alleged negligence. The demurrer to each of the special pleas was sustained.

On the trial of the case the undisputed evidence showed that the deceased, Ora L. Bush, was a trespasser on the track and trestle of the defendant's railroad when and where he was struck by one of defendant's engines in charge of defendant's engineer George Bryan, and received injuries resulting in his death. There was no positive evidence that the engineer saw the deceased on the trestle before striking him with the engine, except the evidence of George Bryan, the engineer, taken at the instance of the plaintiffs under the statute permitting examination of either party to a suit at law. The substance of Bryan's evidence is in his answers to the fifth and sixth interrogatories propounded to the defendant. He said that when he first saw deceased he appeared to be "near the end of the trestle, and was walking towards the engine, with his face to the engine." The engine was running east, and deceased was going west, the engine approaching the west end of the trestle. "At that time," he says, "my engine was about fifty yards from the west end of the trestle, and the trestle was about one hundred and twenty feet long." The other witnesses who testified as to the length of the trestle stated that it was about 180 feet long, and one witness stated that its exact length was 178 feet. George Bryan further testified that when he first saw deceased he was where he could have gotten off the trestle without any trouble or danger, because he was then at the east edge of the trestle; that he (Bryan) had his hand on the throttle and was looking ahead; and that, when the deceased saw the engine, he (Bryan having blown the whistle to attract his attention), instead of getting off or turning back, ran towards the engine some distance, and stopped, during which time Bryan was doing all he could to stop the engine. "I reversed the engine, applied the brake, and gave her sand, and used all the means at hand to stop the engine." When deceased was struck, Bryan says he was still doing everything he could do to stop, but the outer corner of the pilot struck him and knocked him off. Bryan further stated that his engine was going "about fifteen miles" an hour when deceased was first seen. It was shown, without dispute, that the track was straight for about 200 yards or more west of the trestle, and the view along he track unobstructed, and that it was broad daylight, and that the track was straight for some distance east of the trestle, and that the track was about level along there. There were no cars attached to the engine,-only an engine and tender. The trestle was 10 or 12 feet high, or at highest point, near the middle, 15 feet high. The evidence did not disclose definitely where deceased got on the track, or what distance before getting on the trestle deceased had...