St. Louis & S.F. Ry. Co. v. Dennis

• Decision Date: 09 April 1925
• Docket Number: 6 Div. 313
• Citation: 103 So. 894,212 Ala. 590
• Court: Alabama Supreme Court
• Parties: ST. LOUIS & S.F. RY. CO. v. DENNIS.

103 So. 894

212 Ala. 590

ST. LOUIS & S.F. RY. CO. v. DENNIS.

6 Div. 313

Supreme Court of Alabama

April 9, 1925

Appeal from Circuit Court, Lamar County; R.L. Blanton, Judge.

Action under the Homicide Act by R.B. Dennis, as administrator against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Bankhead & Bankhead, of Jasper, for appellant.

W.F Finch, of Jasper, for appellee.

MILLER J.

This suit was brought by R.B. Dennis, as administrator of the estate of Benjamin Dennis, deceased, against the St. Louis & San Francisco Railway Company, to recover damages for killing Benjamin Dennis, under the Homicide Act (Code 1907, § 5696), which occurred about November 10, 1921. The jury returned a verdict in favor of the plaintiff, and, from a judgment thereon by the court, the defendant prosecutes this appeal.

This cause was submitted to the jury on two counts, numbered 2 and 4: The former charged wanton negligence, and the latter subsequent negligence, and the only plea to these counts was general issue. Demurrers to count 2, the wanton count, were overruled by the court, and this action of the court is assigned as error. This count alleges the defendant was operating a railroad, with trains propelled by locomotives thereon, through Beaverton, Lamar county, Ala., and its servants, agents, or employés, in charge or control of a train on the track at or near Beaverton, while acting within the line and scope of their authority as such, "wantonly caused or allowed the said train or locomotive to strike plaintiff's said intestate *** while he was on or near the said railroad track, thereby causing his death." It charges he was wantonly struck "while on or near the said railroad track. Each alternative "on or near" was sufficient under the direct charge that it was wantonly done. It does not attempt to set forth the facts showing the wanton misconduct; but alleges it wantonly struck him, while he was "on or near" the track, which is sufficient under our system of pleading. It was not necessary under this wanton charge to allege that he was "dangerously near" the track to make this alternative averment--"near the track," sufficient. It appears from the averments that he was near enough the track to be wantonly struck by the train or locomotive, which clearly shows he was dangerously near it when the count is construed as a whole. He was wantonly struck, and it is immaterial whether he was on or near the track at the time. Each alternative averment, "while on or near" the track, in connection with the other charges in this count, states a cause of action for wanton injury causing death of decedent by being struck by the train or locomotive; and the court did not err in overruling the demurrers of the defendant to it. This count alleges the injury was wantonly inflicted, which this court has held could be done. Birmingham R.L. & P. Co. v. Nicholas, 181 Ala. 491, 511, 61 So. 361; Barbour v. Shebor, 177 Ala. 304, 58 So. 276; A. G.S.R.R. Co. v. Burgess, 114 Ala. 587, 22 So. 169.

The deceased was about 86 years of age; he was deaf. Under the evidence of the plaintiff he could hear and understand when spoken to in an ordinary tone of voice, and under the defendant's evidence he could hear and understand when spoken to in a "pretty loud" tone.

Beaverton, a station of the defendant's, was an incorporated town with 7 or 8 stores; a road used frequently by the public crossed the track of the defendant in this town, about 130 to 150 yards east of the station. There was a path commencing at this crossing which ran up the track east of the crossing for about 200 feet, and thence off of the track to a pasture, swamp, and creek, which had been used prior to this injury, from 2 to 5 years, by the general public, in going to and from the pasture for and with cattle, going to and from the creek for swimming and fishing purposes. This engineer had been operating engines over this track at this place for 11 years, and the fireman had been assisting for 4 or 5 years. The train that killed the deceased was a freight train with 44 cars; it was daylight--in the afternoon. It was running at the rate of 30 or 35 or 40 miles an hour, on down grade, at the time of the injury; and it was at the time running from the east in a westerly direction. The track was straight for 3 miles east of this crossing. The evidence of the plaintiff tended to show the deceased was struck by the engine while on this road, while crossing the track, and his blood and different parts of his body were found between the middle of this road crossing and west thereof toward the station; that no bell was rung before the injury, and no whistle was blown until just as the deceased was struck, and the speed of the train at the time was from 35 to 40 miles an hour, and it was not checked until after the injury. The evidence of the defendant tended to show: That its engineer saw the deceased coming toward the track east of this crossing when the engine was 250 or 300 feet away. Deceased came up on the track about 12 feet in front of the engine and 40 or 50 feet east of this road crossing. The bell was rung and continued to ring and the alarm whistle blown and continued to be blown, and the emergency brakes were applied as soon as he saw deceased coming toward the track. The train was stopped as soon as possible, which was within 1600 feet, that the speed of the train was about 30 miles an hour, and all that was known to skillful engineers was done to prevent the injury after deceased started toward the track.

Another part of the evidence of the plaintiff tended to show that deceased was down at this creek fishing, and was returning home, went this path to the railroad track, thence commencing to walk on the track between the rails in this path at a point about 200 feet from the road crossing, and walked in the path on the track to

this crossing, and then turned to get off of the track and follow the road, when he was struck by the engine; that the track between him and the engine was straight for 3 miles, and, while he was walking this path on this track for about 200 feet, the bell was not rung and the whistle was not blown; but the alarm whistle was blown just as the engine struck him, and the servants...