136 Ala. 191 | Ala. | 1902
To those counts of the complaint. Avhich ascribed the death of plaintiff’s intestate to the. negligence of the railway company, the defendant pleaded the general issue1 and three pleas of contribu-torv negligence. The first, of these, being plea 2, is in the following language: “Defendant, says that the plaintiff’s intestate, said Edward IT. Shelton, was guilty of contributory negligence, which negligence proximately contributed to his injury, in this, that he at
One count of the complaint, the 44th, charges that in the operation of a locomotive engine over and across Water street in the city of Mobile, the defendant “wantonly run over and killed Edward H. Shelton * * who was then and there upon the track of the defendant.” We are clear to the conclusion that this count is not supported by the evidence as to the character of the place at which Shelton was killed, taken in connection with the evidence as to the manner in which the engine was driven upon and over it. The place was at the intersection of Beauregard and Water streets in the city of Mobile where defendant’s track upon which Shelton was killed crosses Water street on Beauregard street. The direction of this track across Water street is not, however, the same as Beauregard street, but it énters upon both streets at the southeast corner of their intersection, and proceeds thence in a west-by-north direction across Water' street out into Beauregard street curving the while a little to the south until finally it unites with another of defendant’s tracks which runs due east, and west along Beauregard street. This junction is about one hundred and fifty feet west of Water street. The evidence shows that Shelton was proceeding along Beauregard street and that if he was stricken by the locomotive it was while he was passing over the track of defendant where it runs diagonally from the southeast corner of the two streets across Water street and out into Beauregard street. This, track in gaining its junction with defendant’s main track running upi and down through Beauregard street passes diagonally over an intervening track of the Louisville & Nashville Railroad Company, also running east and west, along Beauregard street, the space of contact between the two 'in effecting this crossing covering and extending several feet on each side of the west line of Water street. This Louisville &
What we have ‘said above has reference solely to the character of the place at which Shelton was killed, assuming that he was stricken by.the engine, and to the manner of driving the engine; over that place, the discussion involving no consideration as to whether the enginemen knew as a fact dissociated from the character of the place that Shelton was in a position of peril in front of the engine in time to. have conserved bis safety lry stopping the engine or by cheeking its speed. It is now to be determined whether there was any evidence adduced tending to show that the. engineer or fireman saw Shelton so in a position of peril and then failed to fake proper action to avert the disaster, for
But theme is yet another phase of the evidence which appellee insists tends to support the charge, of wantonness. As we have seen it was open to the jury to find that Shelton was on the track in front of the engine and was run over and in that manner killed. It is also to he recalled that both the engineer and fireman testified that they were constantly looking ahead along the track as they crossed Water street. The jury had a right to find that they saw the man whom McDowell saw on the crossing, and that that man was Shelton, as we have indicated. These findings, as we have also indicated, would not authorize the jury to conclude that the enginemen were guilty of wantonness. But the engineer further testified that “the light from the. headlight will enable an engineer to see a person in front of the engine distinctly as close as eight or ten feet to the engine. If the person is on the fireman’s side, the fireman can see him. If he was on the fireman’s, side of the engine he would have to be about fifteen feet or more in front of the engine for me to see him. If he was on my side of the engine I could see Mm within two feet of the engine. - I could [on that occasion;']; have seen anybody on my side-of the engine, and I could see a man fifteen feet in front of the engine on the left side, and I could have seen on the left side more than fifteen feet, but not closer. The fireman could see a man on his
It is stated in the brief for appellant that “the negligence averred in the 10th count consisted in the fact that the engine was moving around a curve and passing therefrom initoi one of the public streets of the city of Mobile, in the night, time; without giving a sufficient warning- of its approachand a like statement is made in the brief for appellee. The 10th count found in this record, however, contains no such averment, its sole allegation of negligence being that the defendant “in the operation thereof [the engine] negligently ran over and killed Edward H. Shelton.” The ground of demurrer which is discussed in the brief is, therefore, not apt, and the arguments upon it are abstract.
Appellant assigns as error the overruling of its demurrer to the 14th count, and insists upon this assignment in the brief. The appellee argues in support of the supposed action of the court overruling the demurrer to this count. But it appears by the record that the demurrer to this count was sustained: The judgment to that effect was rendered on January 28th, 1902, and is as follows: “This, day came the parties by their attorneys, and this cause coming on to be heard, and the defendant’s demurrers to the 14th, 21st, 22nd, 23rd and 46th counts of complaint as amended Jan’y 20, 1902, being argued by counsel and understood, by the court: It is ordered and adjudged by the court that the defendant’s said demurrers to 14th, 21st, 22nd, 23rd and 46th counts of complaint as amended on Jan’y 20, 1902, be and they are hereby sustained.”
It will suffice to say of the action of the court denying defendant’s, motion to amend its answers to interroga-
The court did not err in striking from such answers the statement by the person making them that a flagman did not precede the engine over' the crossing “for tlie reason that the engine was moving very slowly and expected to stop- on the ci’ossing or just on the other side of the crossing." Turner and Roach, by whom the defendant answered the interrogatories, could not except from hearsay know why McDowell, the flagman, did not precede the engine on this occasion across Water street, nor why Doyle, the engineer, did not have him do it; and surely they could not know that the engine, or tlie engineer, “expected" to stop just beyond the crossing. Moreover, the reasons for the failure to have the crossing flagged were wholly immaterial.
It is not conceivable that defendant could have been prejudiced by the plaintiff’s reading to the witness Nicholson his examination on a former trial as stenog-graphically reported. To the contrary, this would naturally be of benefit to the defendant by way ■ of refreshing- the memory of its witness. It does not appear that this import of tlie former examination was introduced in evidence or was read to or even in the presence of the jury, though the presence of the jury when it was being read to the witness would be of no consequence.
We are not prepared to say that tlie evidence was so overwhelming to the conclusion that Shelton was killed in an effort to get upon the running board of the. engine
We have thus considered all the rulings of the trial court which 'are discussed, in the brief for appellant. We find no error in them; and the judgment must he affirmed. .