Southern Ry. Co. v. Bennefield

• Decision Date: 13 April 1911
• Citation: 55 So. 252,172 Ala. 588
• Parties: SOUTHERN RY. CO. v. BENNEFIELD ET AL.
• Court: Alabama Supreme Court

55 So. 252

172 Ala. 588

SOUTHERN RY. CO. v. BENNEFIELD ET AL.

Supreme Court of Alabama

April 13, 1911

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by E. F. Bennefield and others, as administrators, against the Southern Railway Company. From a judgment for plaintiffs defendant appeals. Reversed and remanded.

Weatherly & Stokely, for appellant.

Stallings & Drennen, for appellees.

MAYFIELD J.

This action is under the homicide statute, to recover damages for the wrongful death of plaintiffs' intestate, who was a child under seven years of age.

The child was attending school on the day it was killed. It had been playing with its schoolmates, during the noon recess and the second bell was calling them from play to books. The playground, or a part thereof, extended across the defendant's railroad tracks from the schoolhouse. At the time of the fatal accident, a number of box cars, coupled together, were standing upon the track between the playground and the schoolhouse. The children attempted to cross the railroad track by going under these box cars and over the couplings. Some had crossed safely, and others had not crossed. Intestate was in the act of crossing, by crawling under a car or over the coupling between two cars, when an engine, attached to several other cars, was backed against the standing cars, for the purpose of coupling on to them and making up the train. The impact caused by the moving engine and cars striking the standing cars knocked the latter one or two car lengths from their position of rest, thus running over and killing intestate, who was at the time attempting to cross, as stated.

The children who had crossed the track hollowed to those who had not crossed to look out for the train, which was backing in to be coupled. There is no evidence, however, that either the intestate or the persons in charge of the moving train heard the warning. But the evidence does show, and without dispute that it was wholly improbable, if not impossible, that the persons in charge of the train heard or could have heard this warning. The evidence is without dispute that those in charge of the train did not see intestate, or know of his peril at the time of the injury. It was shown, however, that the train crew were familiar with the locus in quo, and that the playground was across the track from the schoolhouse, and that the children were in the habit of frequently crossing the track during recess, and that the fatal hour was the time for the noon recess. But there was no evidence that there was a habit or custom among these school children to cross the track by climbing over or under the couplings of cars standing thereon; much less any evidence that the crew knew of a custom to so cross the track. The evidence was that the train was moving at the rate of from two to ten miles per hour, when it came in contact with the standing cars. There was no evidence to show that the coupling was made in such wanton, reckless, and indifferent manner as to amount to even gross negligence, much less wanton negligence. While it may be said that the train was moving faster than was usual or customary in making such couplings, and therefore faster than was necessary in order to effect the coupling, there was no evidence to show that the coupling was made wantonly or recklessly, though it may have tended to show that it was negligently done. We not only feel satisfied that there was no evidence tending to show wantonness in making the coupling, but we feel impelled to so hold, under all the evidence in the case.

There were six counts in the complaint, but the sixth count was withdrawn by the plaintiffs in open court. Demurrers were sustained to counts 2, 3, and 4, leaving only counts 1 and 5 in the complaint.

Count 1 charged simple negligence only in the manner of the operation of the train in Pinkney City, Ala., where the accident occurred; but as to this count the court, on the written request of the defendant, gave the general affirmative charge at the conclusion of the evidence.

The fifth count of the complaint charged that the defendant's servants in charge or control of the train willfully, wantonly, or intentionally "ran or propelled said locomotive, train, car or cars, on, over, or against plaintiffs' intestate, and thereby killed plaintiffs' intestate, who was a little child, to wit, seven years old." The general issue was pleaded to this count.

The case being tried or going to the jury solely on the count charging wantonness or willful injury, it is both unnecessary and improper that we should treat or decide questions as to simple, subsequent, or contributory negligence, as these questions were all ruled on in favor of the appellant, and no injury could possibly have resulted to appellant from rulings of the trial court thereon. The only questions we will consider are those relating to wantonness, or willful injury.

The following propositions of law are well settled in this state, touching the question of liability as for wanton or willful injury:

"The duty not to wantonly, willfully, or intentionally kill or injure a trespasser on a railroad track, in the operation of the engines or cars thereon, is just as imperative as not to so injure one rightfully on such track; in such cases the law makes no possible distinction." A. G. S. R. R. Co. v. Guest, Adm'r, 144 Ala. 373 (headnote 7) 39 So. 654.

"An intent to injure on the part of the defendant's employés is not essential to a liability, notwithstanding contributory negligence; it is enough if they exhibit such wantonness and recklessness as to probable consequences as implies a willingness to inflict or an indifference as to whether injury is inflicted therefrom." A. G. S. R. R. Co. v. Williams, 140 Ala. 230 (headnote 6), 37 So. 255.

" 'Wantonness' consists in consciousness by one charged with it, from his knowledge of existing circumstances and conditions, that his conduct will probably result in injury, and yet, with reckless indifference or disregard of the natural or probable consequences, but without intention to inflict injury, he does or fails to do the act." B. R. L. & P. Co. v. Landrum, 153 Ala. 194, 45 So. 199 (headnote 16), 127 Am. St. Rep. 25.

"To the implication of willfulness, or wantonness, or reckless indifference to probable consequences, it is essential that the act done or omitted should be done or omitted with a knowledge and a present consciousness that the injury would probably result. The jury may, in a proper case, infer such consciousness, willfulness, or wantonness from his knowledge of the existing perilous

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