Southern Ry. Co. v. Drake

• Decision Date: 13 January 1910
• Citation: 166 Ala. 540,51 So. 996
• Parties: SOUTHERN RY. CO. v. DRAKE.
• Court: Alabama Supreme Court

51 So. 996

166 Ala. 540

SOUTHERN RY. CO. v. DRAKE.

Supreme Court of Alabama

January 13, 1910

Rehearing Denied Feb. 26, 1910.

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Elizabeth V. Drake against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Weatherly & Stokely, for appellant.

Pinkney Scott, for appellee.

EVANS J.

This action is predicated upon section 27, Code 1896, and is brought by the administratrix of the estate of Jackson R Drake, deceased, against the Southern Railway Company, a corporation, to recover damages for the alleged wrongful killing of the plaintiff's intestate. The record (page 14) shows that the issues were determined between the parties by the rendition of the verdict returned by the jury on the 11th day of March, 1908, and judgment was entered on that day. The bill of exceptions was signed and filed May 9, 1908 hence there is no merit in appellee's point that the bill was signed out of time. Acts 1900-01, p. 1863, § 18; Fidelity Mut. Life Ins. Co. v. Batson, 136 Ala. 334 34 So. 166.

It is conceded that the intestate was a trespasser on the track of the defendant company at the time he was run upon by its train; and in view of this concession the case of the plaintiff may be considered in two phases, as presented by different counts of the complaint: First, it is alleged in one of the counts that the defendant's agent or servant after discovering the perilous condition of the intestate, was guilty of negligence which proximately caused the death of the intestate; and, secondly, in another count, or other counts, it is alleged that the agent or servant of the defendant, acting within the scope of his duties, willfully, wantonly, or intentionally caused the death of the intestate.

The train that ran upon the deceased was a passenger train, composed of an engine and three coaches; one of the coaches being a Pullman sleeper. The engine was equipped with an electric headlight, together with all modern appliances necessary to be used in the stopping of the train "in emergency," and the coaches were also equipped with such necessary appliances. The engine was controlled by a competent engineer, and the headlight and the stopping appliances were in good condition. The train had made a stop at the station on Nineteenth street, and was proceeding on its way, in a westerly course, through the corporate limits of the city of Bessemer. It was near the hour of 1 a. m. The train was moving at the rate of from 15 to 20 miles an hour, and the bell on the engine was ringing continuously. When between Fifteenth and Fourteenth streets the engine ran upon intestate; the exact point of the accident being about 64 or 65 feet east of the Fourteenth street crossing.

It was shown without conflict in the evidence that the intestate's body was lying to the south of the track, with head on the south rail and face turned up, when the engine ran upon it. It was further shown without conflict, by the testimony of the engineer, introduced by the plaintiff, that he (the engineer) discovered the object which proved to be intestate upon attaining a point within 150 feet of it; but that he did not realize or discover that the object was a human being, or that any part of it was on the rail, until the engine was only about 30 feet from it; that, immediately upon discovering that the object was a man, he (the engineer) employed all the means at hand to stop the train and prevent it from running upon him--did all that was possible to stop the train--but that, on account of the nearness of the engine to the object, the means employed proved futile, and the train, although it was stopped as quickly as was possible under the circumstances, ran upon intestate's body.

There was no evidence tending to show that the engineer was keeping a lookout just prior to the moment when he discovered the object, on or near the track, 150 feet ahead of the engine; but there was evidence which tended to show that, if the engineer had been looking ahead, he might have discovered the object before his engine had approached within 300 feet of it. There was also evidence which tended to show that the engine might have been stopped within the space of 150 or within even that of 100 feet. "In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant. When these elements are brought together, they unitedly constitute actionable negligence." 29 Cyc. 419. The principle announced above has been applied by this court. For instance, in the case of Birmingham Railway, Light & Power Co. v. Jones, 153 Ala. 157, 45 So. 177, following the case of Southern Railway Co. v. Williams, 143 Ala. 212, 38 So. 1013, we said: "Actionable negligence being a failure to discharge a legal duty to the person injured, if there is no duty there is no negligence. And even if the defendant owed the duty to keep a lookout for persons rightfully on the track, but owed none to the plaintiff because she was a trespasser, no action will lie, for the duty must be to the person injured."

Therefore, in the instant case, although it was the duty of the engineer to keep a lookout for persons using the crossing at Fourteenth street, and he may have also owed the duty to his passengers to keep a lookout for obstructions on the track, the plaintiff can take nothing in this action for the failure of the engineer to discharge such duties owed to others. Her intestate was a trespasser, and nothing was due him until the engineer discovered his perilous situation. Beach on Contr. Neg. (2d Ed.) § 203, and cases cited in note 5 to the text, amongst them being Bentley v. Georgia Pac. Ry. Co., 86 Ala. 484, 6 So. 37; Carrington v. Louisville & N. R. Co., 88 Ala. 472, 6 So. 910; Frazer v. South & N. A. R. Co., 81 Ala. 185, 1 So. 85, 60 Am. Rep. 185. See, also, B. R. L. & P. Co. v. Jones, 153 Ala. 157, 45 So. 177; C. of G. Ry. Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Montgomery's Ex. v. A. G. S. R. R. Co., 97 Ala. 305, 12 So. 170.

But it is insisted that the evidence tends to show that the conditions at the point where the accident occurred were such as imposed on the engineer the duty to be on the lookout for persons who might be on the track--for even trespassers. As has been stated, the plaintiff's intestate was not at or on the crossing, but was lying with his head on one of the rails, 64 or 65 feet distant...