Western Ry. of Alabama v. Sistrunk

• Decision Date: 04 December 1888
• Citation: 85 Ala. 352,5 So. 79
• Parties: WESTERN RAILWAY v. SISTRUNK
• Court: Alabama Supreme Court

5 So. 79

85 Ala. 352

WESTERN RAILWAY v. SISTRUNK

Supreme Court of Alabama

December 4, 1888

Appeal from circuit court, Macon county; JAMES W. LAPSLEY, Judge.

Action by J. E. Sistrunk against the Western Railway of Alabama to recover damages for the injuring of stock by a train running on the road of said company. The complaint was as follows "The plaintiff claims *** damages for this: The said defendant, a railroad company, and operating a railroad in this state, on or about the 20th day of September, 1887 negligently injured by its locomotive or cars then running on said railroad two mules, of the value of five hundred dollars, the property of the plaintiff, at a place on said railroad about seventy-five or one hundred yards distant from Cowles' Station, in this county; and plaintiff avers that said station was at the time a regular station," etc. The defendant made a motion to strike the cause from the docket, "because neither the summons nor complaint discloses a legal defendant to said case," and "because the defendant named in the summons and complaint is not such a being as the law authorizes to sue or be sued." The court overruled this motion, and allowed the plaintiff to amend his summons and complaint, and the defendant excepted. Thereupon the defendant demurred to the summons and complaint, as amended, because the summons and complaint, as amended, was "a variance between the summons and complaint, as amended, in the description of the defendant sued," and because the time and place of the alleged injury were not averred with sufficient certainty. The court overruled this demurrer, and the defendant excepted.

The testimony of the case, as shown by the bill of exceptions tended to corroborate the allegations of the complaint as to the time and place of the accident. One of the witnesses introduced by the defendant, one McWaters, testified that he was running an engine for the defendant on its road some time between the 16th and 20th of September, 1887; that it was at night, and was a very dark night; that the engine was running about 12 or 15 miles an hour; that when he was about 150 yards from Cowles' station, near the private crossing of the plaintiff, his fireman, who was on the left side of the engine, called out to him to look out, and that just then he saw a mule jump off the track, about 15 yards in front of the engine; that he immediately reversed the engine, but that he had scarcely reversed the said engine when another mule jumped on the track immediately in front of the engine, and was caught up by the engine on the front part of the engine that it was the only second mule, as spoken of above, that he saw on the track, which was hurt; that he blew the whistle when about a quarter of a mile from the station, and rang the bell, as required by law; that he did all in his power to prevent said accident to said mules; and that his engine was in good repair. The witness was going on to testify, and said that "at the time of the accident his fireman told him-"The plaintiff here stopped the witness, and objected to his testifying to what the fireman said to him. The defendant then offered to prove by said witness that "immediately after running into said second mule, and while he was lying upon the bumper of the engine, the fireman, who was on the left side, said to him, 'You have knocked off one on this side."' But the court refused to allow the witness to testify to this, whereupon the defendant excepted to this ruling by the court. There was testimony introduced by plaintiff tending to prove that the engine was running at a very rapid rate of speed. The evidence was rebutted by evidence for the defendant tending to prove that the engine was running at 12 or 15 miles an hour.

The plaintiff asked the following charges in writing, which were given by the court, and to the giving of which the defendant excepted. (1) "If the jury believe from the evidence that at [the time] or before the locomotive struck the mules the engineer was not keeping a strict lookout ahead, and that such failure to keep a strict lookout materially contributed to the injury to the mules, then they must find for the plaintiff." (2) "If the jury believe from the evidence that the locomotive was running at a very rapid rate of speed at the time the mules were struck, and because of that fact the mules were injured, then they must find for the plaintiff." (3) "If the evidence does not show that the engineer blew the whistle or rung the bell, or had it done at least one-fourth of a mile from the station, and did not continue to blow the whistle or ring the bell at short intervals, until the locomotive had reached the station, and that such omission reasonably contributed to the injury to the mules, they must find for the plaintiff." The defendant then requested the court to give the following charges in writing, and, on the court's refusing to do so, excepted to each refusal separately: (a) "If the jury find from the evidence that the train was running from 12 to 25 miles an hour at the time of the injury; that the engineer was at his post keeping a proper lookout; that his engine and tender were properly manned, and supplied with good and sufficient headlight and brakes, and as soon as the mules were perceived upon the track, or approaching the track in such manner as to indicate to a reasonable man that they were about to come upon the track, the engineer did discover them, and used all means in his power known to skillful engineers, such as the application of brakes and the reversal of the engine, to stop the train,-then the defendant is not liable." (b) "If the jury believe the evidence they must find for the defendant." The rulings of the court on the motions, demurrers, evidence, and the giving and refusing of the several charges asked by the plaintiff and defendant, are now assigned as error.

George P. Harrison, for appellant.

W. F. Foster and Abercrombie & Bilbro, for appellee.

SOMERVILLE J.

1. The circuit court properly allowed the complaint and the summons to be amended so as to show that the Alabama Railway Company was a body corporate, and was sued in its corporate capacity. The amendment did not operate to substitute a new party defendant to the suit. It only added words of more accurate description. Insurance Co. v. Roberts, 60 Ala. 431; Railway Co. v. Propst, 83 Ala. 518, 3 South. Rep. 764. The demurrer to the complaint, and the motion to strike the cause from the docket, based on this supposed departure or variance in the pleadings, was properly overruled. The objections raised were fully obviated by the amendment.

2. The complaint, in our opinion, complied with the statute, and was sufficiently certain in averring the time and place of the alleged injury, as "on or about the 20th of September 1887," and as "at a place on said railroad about seventy-five or one hundred yards distant from Cowles' Station, in Macon county." The purpose of this statutory requirement, in existence at the time of the alleged injury, (Code 1876, § 1711,) but now repealed, it seems, by omission from the new Code of 1886, (section 1150,) was "to inform the railroad officials with reasonable certainty as to the circumstances attending the...