Southern Ry. Co. v. Stewart

Decision Date28 November 1907
PartiesSOUTHERN RY. CO. v. STEWART.
CourtAlabama Supreme Court

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

Action by Adelaide E. Stewart, administratrix, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The second count is as follows: "Plaintiff, as said administratrix, claims of the defendant, the Southern Railway Company, a corporation, the sum of $1,999, as damages, for this: The defendant, on or about the 30th day of April, 1905 was engaged in operating a railroad in this county and running trains thereon for the transportation of passengers and freight; that on said date one of defendant's trains consisting of an engine and cars thereto attached, was being run on the said railroad by its servants and agents in this county at a road crossing near Flackler. And plaintiff avers that her intestate, then in life, was lying on the track of said railroad at or near said crossing; that while lying there said engine and cars were approaching said intestate under the management and control of defendant's agents and servants; that plaintiff's intestate was put in peril of his life or of great bodily harm by said approaching train; that the agents and servants of the defendant in charge of said engine and cars saw said peril of plaintiff's intestate, and saw that plaintiff's intestate would not likely make any effort to avoid being injured; that after the discovery of intestate's peril the agents and servants of defendant in charge of said engine and cars so negligently and carelessly conducted themselves in and about the management of said engine and train that said engine was caused, by reason of such negligence, to run upon intestate and kill him." The following grounds of demurrers were interposed to this count: "(1) It is not shown thereby that defendant's servants or employés saw the peril of intestate in time to have prevented injuring him, or in time to have stopped said train before reaching him. (2) It appears therefrom that plaintiff's intestate was a trespasser on said track. (3) It does not appear therefrom that defendant or its employés wantonly or willfully killed plaintiff's intestate. (4) It appears therefrom that plaintiff's intestate was guilty of contributory negligence proximately contributing to his own death in failing to extricate himself from his perilous position before said train reached him."

Briefly stated, the case made by the plaintiff's evidence is as follows: Deceased was drunk, and down on the track between the rails; his head resting on one of the rails, and his body extending across the track to the other rail. The roadbed was filled up to surface of the cross-ties. The rails were five or six inches high, and their surface bright from wear. The track was perfectly straight in the direction from which the train came to the point where deceased was killed, a distance of 1 1/2 or 2 miles, and also perfectly straight from that point towards Flackler, a distance of 1 1/2 miles. There were no weeds on the track. There was a crossing between the place where deceased was killed and the approaching train, for which the engineer blew the signal. It was several hundred yards from this crossing to the place of the killing. There was another crossing not far from and beyond the point at which deceased was killed. The train ran several hundred yards beyond the point where deceased was struck before being stopped. The day was bright and clear, and the time of the killing about 10 o'clock in the morning.

Humes &amp Speake, for appellant.

Bilbro & Moody, for appellee.

DOWDELL J.

The second count of the complaint...

To continue reading

Request your trial
25 cases
  • Southern Ry. Co. v. Stewart
    • United States
    • Alabama Supreme Court
    • 21 Diciembre 1912
  • Southern Ry. Co. v. Gantt
    • United States
    • Alabama Supreme Court
    • 8 Noviembre 1923
    ... ... arose the duty to conserve his safety. To negligently or ... wantonly run the locomotive over him in such case is to ... disregard that duty. The duty of care being shown, a general ... averment of negligence or wantonness is sufficient ... Southern Railway Co. v. Stewart, 153 Ala. 133, 45 ... So. 51; L. & N. R. R. Co. v. Marbury Lumber Co., 125 ... Ala. 237, 28 So. 438, 50 L. R. A. 620; Central of Ga. Ry ... Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Norwood ... Transportation Co. v. Crossett, 207 Ala. 224, 92 So ... As to ... count 1, the point is ... ...
  • Elba Wood Products, Inc. v. Brackin
    • United States
    • Alabama Supreme Court
    • 27 Enero 1978
    ...of the victim, i. e., a negligent act or omission with knowledge of the then present and impending peril. Accord, Southern Ry. Co. v. Stewart, 153 Ala. 133, 45 So. 51 (1907). Under the facts of this case, we are unable to conclude that, as a matter of law, plaintiff was guilty of either con......
  • Herring v. Louisville & N.R. Co.
    • United States
    • Alabama Supreme Court
    • 16 Diciembre 1915
    ... ... becoming aware that he could not or would not extricate ... himself therefrom. Southern Ry. Co. v. Bush, 122 ... Ala. 470, 26 So. 168; Black's Case, 89 Ala. 313, 8 So ... 246; Moorer's Case, 116 Ala. 642, 22 So. 900." So ... Ry ... was with a knowledge of the then present and impending peril ... Southern Ry. Company v. Stewart, 153 Ala. 137, 45 ... So. 51, cites the cases up to that time, and says: ... "While contributory negligence on the part of the person ... injured ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT