Wilson v. Louisville & N.R. Co.

• Decision Date: 20 April 1906
• Citation: 146 Ala. 285,40 So. 941
• Parties: WILSON v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

40 So. 941

146 Ala. 285

WILSON v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

April 20, 1906

Appeal from Circuit Court, Chilton County; Samuel L. Brewer, Judge.

"To be officially reported."

Action by A. J. Wilson against the Louisville & Nashville Railroad Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Bowman Harsh & Beddow, for appellant.

William A. Collier and George W. Jones, for appellee.

HARALSON J.

The appeal presents alone for review the action of the court in sustaining a demurrer to the second count of the complaint which averred in substance that the defendant's railroad crossed a public highway in the town of Clanton, on grade therewith; that plaintiff was in a wagon drawn by a team of horses on said highway, at or near said crossing; that the team became frightened and ran away, and as the proximate consequence thereof, plaintiff was thrown or caused to fall from said wagon, and was badly and permanently injured in a manner therein described, and his horses and wagon were greatly injured.

It is then averred, that at that time there was in force and effect, an ordinance of the town of Clanton, which provided that any person or railroad or other corporation, which blocks up or unnecessarily obstructs any portion of any public street side-walk or highway with locomotives, cars, or other like commodity, for more than five minutes at a time, or permits the same to stand in any such street, side-walk or highway, for more than five minutes at a time, so as to prevent the free passage of persons and vehicles over and along such street, side-walk or highway, must on conviction be fined for each offense not less than one nor more than one hundred dollars.

It is then alleged that said team became frightened and ran away, causing the infliction of said injuries and damages to the plaintiff, by reason and as a proximate consequence of the violation of said ordinance by the servant or agent of defendant in charge or control of said engine, acting within the line and scope of his authority as such, as follows, to wit: "Said servant or agent of said Louisville & Nashville Railroad Company, in violation of said ordinance, permitted the said locomotive engine to stand in said highway so as to prevent the free passage of plaintiff and his said wagon over and along said highway for more than five minutes at that time."

It will be observed that the causal connection between plaintiff's injuries and damage, and the offense or negligence of defendant, is contained in the words just quoted above from the complaint. To this count the defendant demurrer, on the ground that it fails to show any causal connection between the alleged violation of the ordinance set out in said count and the injury complained of, and fails to show how a violation of said ordinance in any way rendered the defendant liable for the injury alleged to have been sustained by plaintiff.

Before the passage of this ordinance, it was not an unlawful act for the company, in the proper operation of its railroad, to stop its engine or train at the crossing of a street or highway of its track. Nor is it any offense for it now to be done provided, it does not obstruct the crossing for more than five minutes at a time. The ordinance has no application to the company, except in the latter event. Mr. Elliott says: "It may, perhaps, be laid down as a general rule that the enactment of a penal statute does not establish a new liability aside from the penalty denounced by the statute itself. In other words, a penal statute cannot ordinarily be regarded as the foundation of a new right of action in addition to that prescribed, and the best reasoned cases hold that the only new liability arising from the neglect of such purely statutory duty is for the prescribed penalty." 2 Elliott on Railroads, § 711. Again he says, in the same ...