Southern Ry. Co. v. Smith

• Decision Date: 30 June 1909
• Citation: 50 So. 390,163 Ala. 174
• Parties: SOUTHERN RY. CO. v. SMITH.
• Court: Alabama Supreme Court

50 So. 390

163 Ala. 174

SOUTHERN RY. CO. v. SMITH.

Supreme Court of Alabama

June 30, 1909

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

Action by Albert J. Smith, as administrator of Robert Taylor Smith deceased, against the Southern Railway Company, for damages for the death of the deceased. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Count 4 is as follows: "Plaintiff, Albert J. Smith, suing as administrator of the estate of Robert Taylor Smith, deceased claims of the defendant, the Southern Railway Company, a corporation, the sum of $20,000 as damages, for this: On or about the 30th day of July, 1908, the defendant was, by and through its servants and employés, engaged in running and operating locomotives and trains of cars over the Southern Railroad through and past the village of Larkinsville Jackson county, Ala., and on said date plaintiff's intestate, a child six years of age, was on the track of said railroad at or near said village of Larkinsville, and at such time and place defendant's employés and servants, while operating and running a locomotive and train of cars, and within the scope of their employment, discovered plaintiff's intestate on the track in time to avoid injuring him by the exercise of due care and preventive effort, and after the discovery of such peril negligently propelled or permitted said locomotive to run against and kill plaintiff's intestate, to his damage as aforesaid."

Count 5: Same as 4, down to and including the words, "was on the track of said railroad," and concludes as follows: "That the place where said child was on the track was one in which persons at frequent intervals and in large numbers used said track in passing into and out of said village of Larkinsville, or in crossing the railroad; that this fact was known to the employés and servants in charge of a locomotive and train of cars at that time; that such employés then and there had good reason to apprehend that some one or more persons were on the track; that in the observance of ordinary and reasonable care, under the circumstances, it was the duty of those in charge of the said locomotive to keep a lookout for persons on the track at said time and place; that said employés, acting within the scope of their employment, negligently failed to keep a lookout for such person, and as a proximate result of such negligence said employés, or one or more of them, negligently ran said locomotive against and killed plaintiff's intestate."

The grounds of demurrer are discussed in the opinion of the court.

The following charges were refused to the defendant:

"(2) The burden of proof, in so far as count 4 of the complaint is concerned, is upon the plaintiff to show to your reasonable satisfaction that defendant's employés, in charge and control of the engine which killed the plaintiff's intestate, discovered said intestate on the track in time to have avoided injuring him by the exercise of due care and preventive effort, and that after the discovery of such peril they failed to exercise such care as a reasonably careful man would have exercised to prevent the injury." "(7) I charge you that the burden of proof is on the plaintiff to show to your reasonable satisfaction that the defendant, whose negligence was alleged in the complaint, was guilty of wantonness or willfulness in causing the injury. (8) The burden of proof is upon the plaintiff, in so far as he seeks to recover under the fifth count, to prove to your reasonable satisfaction the allegations of fact therein, and that the defendant's employés were guilty of negligence as therein averred. (9) I charge you that plaintiff's intestate was a trespasser on the track, and defendant's employés owed him no duty, except not to injure him negligently after discovering his peril, or not to injure him wantonly or willfully." "(15) The fact, if it be a fact, that people were accustomed to walk along said track at and about the place where plaintiff's intestate was killed, if known to defendant's employés in charge of the train, did not charge him with notice or knowledge that any one would likely lie down on said track. (16) The fact, if it be a fact, that people were accustomed to walk along the track where Robert Taylor Smith was killed, did not charge defendant's employés in charge of the train with notice or knowledge that a child unable to take care of itself would be allowed by its parents to go unattended upon the track, or to lie down thereon." "(21) The fact, if it be a fact, that the engineer failed to blow the whistle or ring the bell when he saw the child on the track, would not be negligence which would authorize plaintiff to recover in this case." "(24) The fact, if it be a fact, that the train was running at such a rate of speed as that it could not be stopped in less than 100 yards, would not be such negligence as would entitle plaintiff to a verdict in this case." "(26) Under the evidence in this case, it was not the duty of defendant's engineer to keep a special lookout for persons on the main track at the place where intestate was killed." "(38) In determining whether the engineer was negligent in the operation and running of the engine at the time of the injuries to plaintiff's intestate, you are to take into consideration, not only the engineer's duty with reference to persons on the track, but also his duty to the passengers on the train, and his duty with reference to carrying the United States mail on schedule time. (39) The engineer did not discover the plaintiff's intestate, within the meaning of the complaint in this case, unless or until he became aware that the object he saw on the track was a human being."

Paul Speake, for appellant.

Virgil Bouldin, for appellee.

SIMPSON J.

This action was brought by the appellee to recover damages for the death of his intestate, Robert Taylor Smith, alleged to have been caused by the negligence of the defendant in running its train of locomotive and cars.

The first assignment of error insisted on is to the action of the court in overruling the demurrer to the fourth count of the complaint. We think that, when the said count alleges that the employés of the company "discovered the plaintiff's intestate on the track in time to avoid injuring him," the plain and obvious meaning is that they discovered that it was a small child on the track, and if that was not true, but they merely discovered some object which they did not recognize as a child, that would be proper subject for a plea, and not a demurrer; nor do we think it was necessary for the pleader to allege that the defendant's employés discovered that he could not or would not extricate himself from his perilous position. The presumption that one on a railroad track will move off on seeing a train approaching does not apply to a child only six years old. "It is not to be supposed that one of such tender age would appreciate the perilous situation, or have sufficient judgment and discretion to extricate herself." So. Ry. Co. v. Forrister, Adm'r (Ala.) 48 So. 69. There was no error in overruling the demurrer to said fourth count.

The next insistence is that the court erred in overruling the demurrer to the fifth count. This court has frequently held that the employés of a railroad company are not under any obligation to keep a lookout for a trespasser, and that this rule applies equally to children as to grown persons. It has also held that where the road runs through a thickly populated locality, where persons are in the habit of crossing in such numbers and with such frequency, which is known to the person in charge of the train, that he has reason to believe there are persons in exposed positions on the track, he will be held to a knowledge of the probable consequences of maintaining great speed at such places, and must consequently keep a lookout, in order to avoid injury. Ga. Pac. Ry. v. Lee, 92 Ala. 262, 9 So. 230; Ala. Grt. So. R. R. v. Moorer, 116 Ala. 642, 645, 22 So. 900; So. Ry. v. Bush, 122 Ala. 470, 26 So. 168; N., C. & St. L. Ry. v. Harris, 142 Ala. 249, 37 So 794, 110 Am. St. Rep. 29; s. c. (second appeal) 44 So. 963; Highland Ave. & Belt R. R. v. Robbins, 124 Ala. 114, 116, 118, 27 So. 422, 82 Am. St. Rep. 153. This court has also held that, it is necessary in a complaint to aver facts showing that the person injured, whether infant or adult, was not a trespasser. Gadsden & Attalla H. Ry. v. Julian, 133 Ala. 371, 32 So. 135; So. Ry. v. Bush, supra, 122 Ala. 481, 482, 26 So. 168. Where a child 19 months old, in crossing a...