Verner v. Alabama G.S.R. Co.

• Decision Date: 19 June 1894
• Citation: 103 Ala. 574,15 So. 872
• Parties: VERNER v. ALABAMA G. S. R. CO.
• Court: Alabama Supreme Court

15 So. 872

103 Ala. 574

VERNER v. ALABAMA G. S. R. CO.

Supreme Court of Alabama

June 19, 1894

Appeal from circuit court, Tuscaloosa county; S. H. Spratt, Judge.

Action by C. B. Verner, as administrator of the estate of Samuel D Winter, against the Alabama Great Southern Railroad Company to recover damages for injuries causing the death of plaintiff's intestate. A demurrer to the bill was sustained, and plaintiff appeals. Affirmed.

The complaint filed in the cause was as follows: "The plaintiff claims of the defendant the sum of twenty thousand ($20,000) dollars as damages for the wrongs and injuries done by it hereinafter complained of: For that whereas heretofore, to wit, on or about the 24th day of September 1892, the defendant was owning and operating a railroad from Meridian, Mississippi, to Chattanooga, Tennessee, which railroad passed through the county of Tuscaloosa and the state of Alabama, and the plaintiff avers that at the time the aforesaid plaintiff's intestate was walking and traveling on defendant's said railroad, at a point about four miles north of the Tuscaloosa depot on said defendant's road, at a point on said railroad near what is known as 'Box Spring,' in said county, as he had a right to do, and that, while being on said railroad track at the time and place aforesaid, the said defendant so negligently, carelessly, willfully, recklessly, and maliciously ran one of its said trains and locomotives on over, and against plaintiff's said intestate, and, by reason of the bruises, hurts, and wounds thereby caused plaintiff's said intestate was so injured, by the said wrongful act of the defendant, that he died from the effect of the said wounds and injuries received by him aforesaid, on, to wit, the day and year aforesaid. The plaintiff avers that the agents of defendants who were operating the said locomotive and train of defendants saw plaintiff's intestate on the said track, at the said time and place aforesaid, in due time to have prevented the injuries to plaintiff's intestate complained of, if the said agents of defendant running and operating the said locomotive and train had used and exercised even reasonable diligence and prudence in operating the said locomotive and train, but that, instead of using and exercising diligence to prevent said injuries to plaintiff's intestate, they, knowing that plaintiff's intestate was on said track, failed to blow the whistle or ring the bell, or to give any other warning to the plaintiff's intestate of the said approaching train, but knowingly and willfully allowed him to remain on said track without being warned of the approaching train, as aforesaid, and knowingly and willfully and maliciously and recklessly ran said train on and against plaintiff's intestate, as aforesaid, and without ever giving, or attempting to give, any warning to him as aforesaid, and without attempting to stop or check the speed of the train so as to prevent striking and killing plaintiff's intestate; that if the said agents of defendant operating said train had used even due diligence, after they discovered plaintiff's intestate on the track aforesaid, or after they ought to have discovered him, they could have warned him of the approaching train, and allowed him to escape unhurt, or could have checked or stopped said locomotive and train before striking said intestate; that the train was moving up grade at the time and place of the injuries aforesaid, and could have been easily stopped had the defendant used reasonable diligence and care which he owed plaintiff's intestate. Plaintiff avers that, at the time and place of said injuries, said defendant was running its train at a reckless speed, and without proper and sufficient headlights on said engine, and said plaintiff further avers that the said defendant utterly disregarded its duty to the said plaintiff's intestate at the time and place aforesaid, in that it then and there so negligently, carelessly, willfully, and maliciously operated and worked its said locomotive and train of cars with defective headlights as aforesaid, and so negligently, carelessly, and recklessly conducted itself in and about the premises that, by reason thereof, it ran its said locomotive and train on and against the plaintiff's intestate with great force and violence, and, by reason of said bruises, hurts, and wounds thereby caused to him by the said defendant, he died on, to wit, the day and year aforesaid. Plaintiff further avers that on or about the 24th day of September, 1892, his intestate, Samuel D. Winter, boarded one of the defendant's trains at Coaling Station, one of the defendant's depots in the county of Tuscaloosa, to come to Tuscaloosa, another depot of defendant in said county, for the purpose of coming to Tuscaloosa and returning to Coaling on the same day, as a passenger on defendant's said train, he having purchased a round-trip ticket, which entitled him to be carried said journey as aforesaid by the defendant, which was then engaged in the business of common carrier, for the purpose of transporting freight and passengers over its said line of road, and for said purpose it was operating a system of railroads between Chattanooga, Tennessee, and Meridian, Mississippi; and that its said road passed through the county of Tuscaloosa and the state of Alabama, and between the said points, Tuscaloosa and Coaling, a distance of...