Southern Ry. Co. v. Forrister

• Decision Date: 17 December 1908
• Citation: 48 So. 69,158 Ala. 477
• Parties: SOUTHERN RY. CO. v. FORRISTER.
• Court: Alabama Supreme Court

48 So. 69

158 Ala. 477

SOUTHERN RY. CO. v. FORRISTER.

Supreme Court of Alabama

December 17, 1908

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

Action by William A. Forrister, administrator, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The second count is in the following language: "Plaintiff William Forrister, as administrator of the estate of Alma Forrister, deceased, claims of the defendant Southern Railway, a corporation, the sum of $1,999 as damages, for that, to wit, on or about the 23d day of October, 1906 plaintiff's intestate was a minor, of the age of 15 months, and on said date the defendant, by its servants and agents, was operating a railroad in this county for the transportation of freight and passengers, that on said date the agents and servants of defendant were then and there running a freight train on defendant's said road near Larkinsville, in this county, and that the engine of said freight train ran against plaintiff's intestate and killed her; and plaintiff avers that the death of intestate was caused by reason of, and as the proximate consequence of the negligence of the agents and servants of the defendant then and there running said freight train, in this: That plaintiff's intestate was on the track of said railroad and in danger of being run over by said train; that said agents and servants of defendant saw plaintiff's intestate on said track, and saw the peril of said intestate from said train; and that after the discovery of the peril of plaintiff's intestate the agents and servants of defendant negligently ran the engine of said train against said intestate and killed her." (4) Same as 2, down to and including the words "and killed her" where they first occur in said count, and the following: "And plaintiff avers that the place where plaintiff's intestate was killed by said train was a place where the public were accustomed with frequency and in considerable numbers along the track of said railway at and before the time plaintiff's intestate was killed; that said place of killing was in a thickly populated neighborhood near said town of Larkinsville; that the alleged constant use of said railroad track by the public at said place, and at or about said town, and prior thereto, were facts well known to the agents and servants of defendant in charge of said train; that running a train at a high rate of speed at said time and place, without signals of approach, or without keeping a proper lookout, was dangerous to persons in exposed positions on this track at said time and place; that the agents and servants of defendant then and there in charge of said train negligently maintained great speed in the running thereof at said time and place, without keeping a proper lookout, and by reason of which negligence, and as a proximate consequence thereof, the engine of said train ran against plaintiff's intestate and killed her."

Demurrers to the first count were interposed as follows: "(1) Because it does not appear therefrom that said agents or servants of defendant could have stopped said train in time to have prevented the injury. (2) Because it does not appear therefrom that said employés saw intestate in a position of peril in time to have prevented injuring her. (3) Because it seeks to recover for the negligent killing of a trespasser." The following demurrers were interposed to count 4: "(1) It appears therefrom that said intestate was a trespasser on the track, and it does not appear that said agents or employés were guilty of any negligence after the discovery of her peril, or were guilty of wantonly or willfully killing her. (2) Under the facts alleged therein, no cause of action is stated for the killing of plaintiff's intestate. (3) It does not appear therefrom that said agents or employés discovered intestate's peril in time to have prevented stopping or injuring her."

The other facts sufficiently appear in the opinion of the court. There was judgment for plaintiff in the sum of $900.

Humes &amp Speake, for appellant....