101 Ala. 376 | Ala. | 1893
There were originally five counts in the complaint, to which, by amendment, a sixth was added. The defendant demurred to each count, but before the demurrer was passed on, the plaintiff amended his complaint by striking out all the counts except the 1st and 6th, the demurrers to which were overruled, and defendant took issue on them. In the written agreement of'appellant’s counsel filed in the cause, it is admitted that the first count is a good one, and the assignment of error based on its overruling is waived. The averments of .negligence in the 6th count are such as have many times been held to be sufficient: — S. N. A. R. R. Co. v. Thompson, 62 Ala. 500; Western R. R. Co. v. Lazarus, 88 Ala. 453, 6 So. Rep. 877; E. T. V. & G. R. R. Co. v. Watson, 90 Ala. 41, 7 So. Rep. 813; Stanton v. L. & N. R. R. Co., 91 Ala. 382, 8 So. Rep. 798; Ensley R. R. Co. v. Chewning, 93 Ala. 24, 9 So. Rep. 458.
The principles upon which this case rests have been well settled. It is laid down by Pierce, in his work on Railroads, that “The authority to operate a railroad includes the right to make the noises incident to the movement and working of its engines, as in the escape of steam and rattling of cars ; and also the right to give the usual and proper admonitions of danger, as in the sounding of whistles and the ringing of bells. It is, therefore, not liable, while exercising its right in a lawful and reasonable manner, for injuries occasioned by horses, when
In Phil. W. & B. R. R. Co. v. Stinger, 78 Pa. St. 225, in a case similar to this, it is said : “It may be safely assumed, that the company is not liable for injuries resulting from the use of its cars, where due care is exercised. The noise of a rapidly moving train, as well as the sound of the whistle, may alarm a horse, and cause an accident; whether such accident imposes a liability upon the company to make compensation in damages, must depend, to a great extent, upon the fact, whether it was the result of a want of proper care on the part of the persons in charge of such train.” In that case, the fright and running away of the horse and the consequent injury to the plaintiff, was alleged to have been occasioned by the unnecessary and improper blowing of the whistle of the engine, and it was held, that the mere fact of the whistling furnished no presumption of negligence, inasmuch as the whistle was in general use on all roads operated by steam, and was necessary and proper to be used; but whether or not it was used in such an improper, reckless or wanton manner as to amount to negligence, was a subject of legitimate inquiry, to be submitted under all the facts of the case to the jury.
In Stanton v. L. & N. R. R. Co., supra, the foregoing principles received approbation at our hands, and it was further held that, “as the railroad corporation has the right to use its track, and make the required signals at a public crossing, and all the usual noises incident to the running and moving of its trains, it was incumbent on' the plaintiff to show the blowing off of steam and the making of the noise complained of were unnecessary, and recklessly or wantonly done, or with the intention to frighten the m are. ”
The general charge, as requested by defendant, should have been given.
Reversed and remanded.