Southern Ry. Co. v. Stewart
Decision Date | 28 November 1907 |
Parties | SOUTHERN RY. CO. v. STEWART. |
Court | Alabama 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: The following grounds of demurrers were interposed to this count:
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 & Speake, for appellant.
Bilbro & Moody, for appellee.
The second count of the complaint...
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Southern Ry. Co. v. Gantt
... ... 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 ... ...
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...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......
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