72 So. 328 | Ala. | 1916
This action is brought under the homicide act by the administratrix of the estate of W. C. Sims to recover damages for the death of her intestate, who was killed by being run over by one of defendant’s switch engines while on or crossing the track at Attalla, Ala.
The plaintiff’s intestate was killed on the morning of December 31, 1913, between the hours of 9 and 10 o’clock, and at a point between the compress and the depot of the defendant railroad. Between these two points were a number of tracks — five or six — and the engine which struck the intestate was engaged in switching cars. Near the compress there was a track for the convenience of that business, called the compress track. This track and the transfer track, on which intestate was killed, were not laid parallel but approached each other triangularly as they neared the depot. Plaintiff’s intestate on that morning descended the steps from the compress platform and walked down between the tracks toward the depot. The great weight of the evidence is to the effect that intestate stepped upon the transfer track immediaely ahead of the switch engine, a witness for plaintiff testifying that “Sims got on the track in front of the engine. * * * Didn’t step on the track, but stepped over the first rail, and just as he raised his foot, * * * when he stepped over, the engine was not over three or four feet back from him. * * * He did not have time to put the other foot down until it struck him.”
Another witness for plaintiff (witness Hinds) testified that; when intestate “came on the transfer track, he walked up it a piece, maybe 30 or 40 feet,” and “he was walking right down the transfer tracks at the place when he was hit.” The distance between the compress and transfer tracks at the place where the intestate was killed is estimated to be about twelve feet.
We need not further discuss the .evidence in this connection. Suffice it to say, it has been carefully considered in consultation, and we are persuaded that the evidence in this record falls far short of bringing this case within the requirements of the rule laid down in what may be called “popular crossing” cases. It is not pretended that the place in question was a street — or road— crossing, but merely that it was a “public crossing,” so established by continuous and frequent use by the public. We think it is clear that plaintiff’s intestate was not killed at a “public crossing.” So. Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927; Blackmon v. Cen. Ga. Ry., 185 Ala. 635, 64 South. 592; So. Ry. Co. v. Drake, 166 Ala. 540, 51 South. 996; B’ham So. Ry. Co. v. Fox, 167 Ala. 281, 52 South. 889; Savannah, etc., R. R. v. Meadors, 95 Ala. 137, 10 South. 141; Helms v. Cen. Ga. Ry., 188 Ala. 393, 66 South. 470.
The first count of the complaint relied specifically upon the public-crossing theory. The affirmative charge was therefore properly given for the defendant on that count. As the pleas, demurrers to which were overruled, were addressed only to the first count of the complaint, the ruling thereon, in view of what we have here said, is unnecessary to be considered.
This leaves for consideration only the questions of subsequent negligence and wanton or willful injury as charged in counts 2 and 3. The trial court permitted the case to go to the jury upon these counts and charged the jury at length as to each. To these oral charges plaintiff’s counsel reserved no exceptions, but, on the
There was evidence tending to show that the engineer was in his place, with his head out the window, looking ahead, and that the track was but slightly curved. We have previously noted the testimony of the witness Hinds, showing that intestate was •walking down the track at the time he was struck. There was also some evidence that the bell was not rung nor the whistle blown, and that there was noise from a passenger train standing nearby. The engineer insisted that he did not see deceased at all, although he was looking ahead. The fireman testified that he was firing the engine at the time the accident occurred. The proof shows without conflict that the engine was not running over five miles an hour; some of the witnesses estimating the speed as low as three miles.
Charge E is criticised for that it pretermits the negligence of the engineer or fireman in not ringing the bell or blowing the whistle; but the argument assumes that the defendant’s servants or agents owed to plaintiff’s intestate the duty of lookout, which we conclude from this record was not the case.
Of course, by “reasonable care and diligence” is meant such as is required in view of all the circumstances. A similar charge was held to be misleading in Cen. Ga. Ry. v. Stewart, 178 Ala. 651, 59 South. 507. If the plaintiff was of the opinion that the jury might be misled by this charge, in regard to the degree of diligence incumbent on the engineer, an explanatory charge should have been requested. We are unwilling to predicate a reversal upon the giving of this charge, particularly in view of the very full charge of the court, with which plaintiff’s counsel at that time expressed satisfaction.
We do not consider the assignments relating to the question whether the evidence called for would be the statement of a collective fact, or would be objectionable as a conclusion of the witness, of sufficient importance for detailed treatment here. Suffice it to say, they clearly do not present matters upon which a reversal of the case could be predicated.
Affirmed.