Southern Ry. Co. v. Weatherlow

• Decision Date: 27 November 1907
• Parties: SOUTHERN RY. CO. v. WEATHERLOW.
• Court: Alabama Supreme Court

44 So. 1019

153 Ala. 171

SOUTHERN RY. CO. v. WEATHERLOW.

Supreme Court of Alabama

November 27, 1907

Appeal from Circuit Court, Colbert County; Jos. H. Nathan, Judge.

Action by Harrington Weatherlow, pro ami, against the Southern Railway Company, for damages alleged to have been received while crossing the tracks of the Southern Railway Company at a public road crossing. From a judgment for plaintiff defendant appeals. Reversed and remanded.

The allegations of the fourth count sufficiently appear from the opinion. The seventh count is in the following words "Plaintiff claims of the defendant the sum of $2,000 as damages, for that the defendant, on or about the 30th day of September, 1904, was engaged in the business of a common carrier of freight and passengers, in the operation of a railroad from Memphis, in the state of Tennessee, to Stevenson, in the state of Alabama, upon and over which defendant ran engines and trains of cars, and that on or about said day the defendant, in the management of an engine and tender by its servants, wantonly and recklessly propelled its said engine and tender on its tracks over a certain public crossing or street where people were wont to cross and recross in great numbers and with frequency, within the limits of the city of Tuscumbia, Ala., at a dangerous rate of speed, to wit, 20 miles per hour, by which and from which reckless, wanton, and dangerous conduct of defendant's servants and employés in propelling said engine and tender plaintiff was run over by said tender and knocked down, and his skull was crushed and he was otherwise wounded and bruised, while he was crossing the said public crossing or street in the city of Tuscumbia, and as a result of said injuries suffered great mental and physical pain and loss of time, to his damages aforesaid." The pleas interposed to these two counts were the general issue and pleas 3 and 4 of contributory negligence in failing to ascertain before going on the track if an engine or train was approaching the crossing. Demurrers were sustained to these latter pleas on the ground that they were interposed to counts of wanton injury, to which they were no answer.

Defendant objected to the introduction of the code of ordinances and by-laws of the city of Tuscumbia, on the grounds that it was immaterial and incompetent, and because it did not purport to be printed under the authority of the city. On the examination of Palmer it was shown that he was surgeon for the Southern Railway, and had had considerable experience in the observation and treatment of injuries done by trains. The witness was asked the following questions: "What experience have you had as a surgeon in regard to the effect of the hitting or striking of a person standing upon the track of a railroad and being hit by an engine going at the rate of about 15 or 20 miles per hour?" Witness answered: "I have never seen one struck, but I recall six cases said to have been injured in that way." The court sustained objections to the question and answer. The defendant then asked the witness this question: "Where were the persons who were said to have been thus injured?" Answer: "Three of them were on the track two in a baggage car, and one in the depot when I first saw them." Objection was sustained to this evidence. Defendant then asked the witness: "Doctor, suppose that train, when it hit Mr. Weatherlow, had been going at the rate of 15 or 20 miles an hour; what, in your opinion, from your observation and experience, would have been the extent and character of the injury he would have received?" Objection was sustained, and defendant asked the witness this question: "Suppose that this train which struck Mr Weatherlow had been running at a speed of 15 or 20 miles an hour; would it, or not, have suddenly killed him, or what would have been the extent, in your opinion, of the injuries that would have been done him?" Objection was sustained to this question, and the witness was asked: "Is it possible that a person could be hit by a railroad engine, the person thus hit and when hit standing upon the track of the railroad and the engine going at a rate of 20 miles an hour--is it possible that he could have escaped being killed by the engine?" Objection being sustained to this, the following questions were asked: "As to the six cases you referred to a while ago, state how you were informed they were struck?" "How soon after they were struck did you see them?" "Where were ...