Tennessee Coal, Iron & R. Co. v. Hansford

• Citation: 28 So. 45,125 Ala. 349
• Court: Alabama Supreme Court
• Decision Date: 18 April 1900
• Parties: TENNESSEE COAL, IRON & RAILROAD CO. v. HANSFORD.

28 So. 45

125 Ala. 349

TENNESSEE COAL, IRON & RAILROAD CO. v. HANSFORD.

Supreme Court of Alabama

April 18, 1900

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by M. F. Hansford, administratrix of Thomas Hansford deceased, against the Tennessee Coal, Iron & Railroad Company for negligently causing the death of plaintiff's intestate. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was brought by M. F. Hansford, as administratrix of Thomas Hansford, deceased, against the Tennessee Coal, Iron &amp Railroad Company, to recover damages for the alleged negligent killing of the plaintiff's intestate. The complaint as amended contained 12 counts. The court gave the general affirmative charge in favor of the defendant on each of the counts except the seventh. The averments of the seventh count are sufficiently stated in the opinion. The defendant demurred to the seventh count, but it is unnecessary to set out these demurrers, the minute entry of the court not being sufficient to present them for review on the present appeal. The said minute entry, relating to the demurrers, after referring to the complaint being amended recites as follows: "Whereupon the demurrers to the complaint are by the court heard and overruled." To the seventh count of the complaint there were filed the plea of the general issue and five special pleas setting up the contributory negligence of the plaintiff's intestate. Upon these pleas issue was joined, and the trial was had thereon.

The plaintiff's intestate at the time of his death was in the employment of the appellant at its furnaces at Ensley, Ala. He worked at the boilers of appellant. He was killed while on his way home from work at 5:30 p. m. He lived across the railroad tracks a mile or more, and had to cross the railroad tracks to get from his place of work to where he lived. At the time of his death the section crew of defendant were engaged in taking the tools and rails from their push car in front of or near the tool house, and the engine of the appellant, which was engaged in the work of removing the hot and molten cinder from the furnaces to the cinder dumps, had just emptied the cinder pots at the cinder dump, and was returning to the furnaces. The testimony of some of the witnesses for plaintiff tended to show that there was a path from the furnaces across the railroad tracks at the point where the tool house is located, which was considerably traveled by employés of defendant at its furnaces in going to and returning from work, and that the travel over this path was principally in the morning and about 5:30 in the evening. The testimony of the plaintiff also tended to show that it was about dark when the accident happened. The testimony fails to show that the decedent was seen until he got to the tool house and to the tracks which passed in front of the tool house. One witness testifies that he saw him step upon the track at the side of the tool house towards the cinder dump. Other witnesses saw him standing on the side track, or between the side track and the main line, at short intervals before the accident happened.

Plaintiff's first witness, Dode Blockton, testified that he first saw decedent after the train had struck him and dragged him along, and as he was about to go under the wheels; that he did not see him when he was first struck, and had not seen him at all until after he had been struck and carried along by the engine; that when he first saw him after he was struck he was in front of the tool house, being carried along by the engine; that when he first saw him he was right about where the path crosses the railroad, but at that time he had already been struck, and was being carried under.

Plaintiff's next witness, Will Black, testified that decedent was 20 feet from the path on the track at the time he was struck; that the path was on the side of the tool house nearest to the cinder dump; that when witness first saw him (decedent) he was stepping on the railroad track right in front of the tool house; when witness next saw him he was 30 feet further down the track from the tool house; witness had not seen him between these times; witness saw him on the railroad track in front of the tool house, and next saw him 30 feet further down the railroad track towards the dump, and four minutes elapsed between the two times witness saw him.

Plaintiff's next witness, Nelson Goree, testified that he was unloading the tools off the car, and had not been paying any attention to Hansford, the deceased; saw him standing between the two tracks when witness was unloading tools, for two or three minutes, and then saw him struck; the decedent was standing still between the side track and the main line, clear of all trains; he was nearer the side track than the main line, and as near as witness could state, was within 3 1/2 feet from the main line; that deceased was just above the tool house in the path when witness first saw him and then in a few minutes after he was struck, and witness did not see him any more in the meantime, nor until after he was run over; he did not see him at all when the train struck him, nor when the train was carrying him on; did not see him until after he was killed.

These were plaintiff's only eyewitnesses to the accident.

Defendant's witness Mandy testified that he was about 100 yards above the tool house, in front of the engine that ran over Hansford, at the time he was killed. Witness was between the first and second switches into the furnace from the main line. He first saw the engine after it left the dump. Saw it before it got to the tool house. Did not see Hansford killed, and did not know about it until it was all over. From where witness was standing he could see a quarter of a mile up the track towards the tool house, as near as he could remember. Saw the section gang, and saw them get off the track. That was all he saw on the track. Did not see anybody get on the track. Did not see him (Hansford) struck, did not see him get on the track, and did not see him at all. Witness looked down the track as the section gang got off the track, and never looked any more after that until the engine came along right by the side of witness. Witness saw the section boss get off just before the train passed by,-just half a minute before "not that long, I expect,-just a few seconds. I don't know whether Mr. Handsford was on the track when the section foreman got off or not. If he had got on there and stayed on there, I think I would have seen him. I don't know whether he was on or not."

Defendant's witness Sam Johnson testified: "I was working in the defendant's section gang when Hansford was killed, and saw him killed. When I saw him he was standing in the middle of the track. I saw him when the engine hit him, and had seen him before the engine hit him for five or six minutes. During that time he was standing on the track. He spoke to Mr. Perdue while he was standing there, and told him to come on and go home with him. Mr. Perdue told him, 'All right,' he would go as soon as he got through with what he was doing. He was on the track facing Mr. Perdue, and in the same place he was when he was killed, when he spoke to Mr. Perdue."

Defendant's witness Perdue testifies as follows: "I knew Hansford in his lifetime, and was present when he was killed. I was standing in front of the tool house, just in front of the door, and Hansford was on the tract opposite the door. He was standing on the main-line track to the dumps. I saw the engine strike him. At that time he was near the center of the track. He had been standing in the center of the track, to the best of my recollection, two or three minutes,-not longer than that. He said to me, 'Let's go home;' and I said, 'In a few minutes.' When he said that he was standing where he was struck on the track. After I said that I ordered the negroes to shove the push car down there to put off some rails, and I hadn't hardly said the words before the engine dashed up and struck him. It was about two or three minutes after I spoke to him that the engine dashed up. During that time he was standing on the track in the same place. His face was towards me when he was struck,-towards the tool house. When he called to me I looked around, and he stopped when he said the words, and of course he was looking towards me when he directed the remarks to me. After he spoke he stayed right in the same place till he was struck. I did not see the engine till it struck him. At the time he called all the tools had not been taken off the car. I think there were a few tools left to take off, and after two or three minutes, while we were taking them off, the accident took place."

Plaintiff's testimony also tended to show that it was dark, and there was no headlight burning on the engine that ran over the decedent; that no bell was ringing and no whistle was blown after the engine left the cinder dump; that the engine did not stop after running over decedent until it had reached its usual stopping place to go into the furnace switch, a distance of 200 yards from the tool house; that it was running when it passed the tool house from 6 to 12 miles an hour. One of plaintiff's witnesses testified that the engine was visible all the way down the track from the dump and that he saw it on the dump and all the way down. Some of the appellee's testimony tended to show that there was a path from the furnaces which crossed the railroad tracks of the appellant near the tool house. The witnesses who testified to the existence of this path, except the witness Black, placed it on the side of the tool house towards the coal bin. Black placed it on the side of the tool house towards the cinder dump. Plaintiff's witness...