Southern Ry. Co. v. Shipp

53 So. 150 | Ala. | 1910

MAYFIELD, J.

This is an action by the administrator under the homicide statute to recover damages for the wrongful death of plaintiff’s intestate, who was his son, a child of about six years of age. The chifd was killed in the town or village of Hollywood, by one of defendant’s freight trains while backing, and was killed just after the train had started; it had moved backwards only a few feet when it struck the father and child just as they were in the act of crossing the track. Plaintiff and his little son had come from their home some distance in the country to the town of Hollywood, which seems to have been their market and postoffice. They had been over to the postoffice and were going across defendant’s track to its depot, at that place, and were traveling a path which led from one building to the other a.nd crossed the track diagonally. As they approached the freight train it was standing on the track with the engine attached, the train having pulled into town just shortly before. When plaintiff and his son reached the train, it being still, they walked along the side of the cars to the rear end of the train and had just started across the track on reaching the end of the last car when the train started backwards, striking both and killing the son. The path they were traveling at the time was one commonly used by the public, and seems to have been known as such to the agents or train crew of defendant, or at least the use was so common, long continued, and frequent as to charge them with notice. There was no direct evidence that any of the train crew saw plaintiff or his son at the time of, or just before, the injury. The trial resulted in a verdict and judgment for the plaintiff, in the sum of $5,000, from which, defendant appeals.

The first error insisted upon is the overruling of defendant’s demurrers to each count of the complaint as amended. Errors are assigned separately to each count; but they are properly argued together, and we will so treat them. In them, practically the same defects are insisted as inhering in each of the counts, to wit, first, that each failed to show any duty upon defendant or its agent to keep a lookout at the time and place of the injury; second, that it failed to show a duty to give warning that the train would be backed; third, that it failed to show that the omission to give the signals was the proximate cause of the injury. We do not think that any one of the counts as amended was subject to these defects.

Section 3440 of the Code of 1896 provided, among other things, that “an engineer, or other person having control of the running of a locomotive on any railroad * * * must also blow the whistle or ring the bell immediately before, and at the time of leaving such station or stopping place; * * * and must also blow the whistle or ring f.he bell, at short intervals, on entering into, or while moving within, or passing through any village, town, or city,” etc., and section 3443 of the same Code provided that “ a railroad company is liable for all damages done to persons or stock or other property, resulting from a failure to comply with the requirements of the three preceding sections,” etc. The plaintiff and his child were within the protection of these statutes, and the complaint alleged a failure to do what the statute required, at the time and place required, and an injury in consequence of such failure. Each count stated a good cause of action, and sufficiently alleged a duty to keep a lookout, and failure to warn, and that the injury was the proximate result of such failure. It would be an unreasonable construction to hold that the statutes did not apply to a train that was moving backwards, but only to those moving forwards. The statute has been construed to be intended for the protection of the people at these places mentioned, and it would be of little efficiency if railroads could avoid it by moving their trains and locomotives backwards, instead of forwards. Trains are as dangerous, if not more so, when moving backwards as when moving forwards; and if any difference of degree exists as to the duty or necessity to give warning, before starting or moving them, it is greater before moving them backwards. Certainly there is greater reason to expect a train to move for Avar ds than backwards, in the absence of warning as to the fact of intended movement in any direction. We do not think the counts were subject to the demurrers assigned.

The next error insisted upon is the sustaining of demurrers to defendant’s special pleas 7, 8, and 9. These pleas attempted to set up the contributory negligence of the plaintiff, the father of the child, to defeat the action, which is brought by the personal representative and not by the father as parent, to recover compensation for loss of sendees. The action is not for the benefit of the' father, but for the distributees of the intestate, and the/ fact that the father is or may be one of the distributees, or entitled to all, or a part of the judgment, if one is had, does not render the negligence of the father a defense to the action, though he happens to be the plaintiff, because the personal representative, and the person whom the statute directs to sue. A parent who brings an action in his own right for the death of his intestate will not be allowed to recover if his own negligence contributed to the death, in the absence of wanton negligence or willful injury on the part of the defendant; the reason being assigned that a person should not profit by his own wrong. Yet it has been decided in a number of states, and this is one of the number, that the contributory negligence of a parent will not defeat a recovery in an action by him as administrator for the wrongful death of his infant, though he be a beneficiary. It was said by this court in Burgess’ Case, 116 Ala. 515, 22 South. 913, that the damages recovered in an action like this are purely punitive, and that the statute was intended to prevent homicides; that loss of services to, or mental anguish of, the parent is immaterial and irrelevant. The statute expressly gives the administrator the same right of action that the infant would have had if death had not resulted. Of course the contributory negligence of the parent would not defeat the action of the infant had not death resulted, and likewise it is not a bar to the action given by the statute. The rule is otherwise when the parent sues to recover damages as pecuniary compensation for the loss of services. — Dobbs’ Case, 101 Ala. 219, 12 South. 770; Williams’ Case, 91 Ala. 635, 9 South. 77. The subject is thoroughly discussed and the authorities reviewed in a note to the case of Vinnette v. N. P. Ry. Co., reported 18 L. R. A. (N. S.) 328, 47 Wash. 320, 91 Pac. 975.

There was no error in overruing demurrers to the count A. The court properly allowed proof of the fact that- people frequently and constantly crossed the track of the railroad at a point where plaintiff and his child were crossing at the time of the injury. While such a custom of the public to use such path as a crossing of defendant’s track might not give the public or plaintiff any absolute right to cross the track, or might not prevent them from being trespassers when so using the track — though as to this we'do not decide — yet such evidence was competent and relevant to show the degree of care required to be exercised by the defendant’s agents in moving their trains across such point of its track so used by the public as this was shown to have been used, and as tending to charge them with notice of such use by the public.

Charge A ivas properly refused because abstract. The evidence indisputably showed that there was no approaching train at the time of plaintiff’s injury, or at the time he attempted to cross the track. Had the charge been confined to the statement as to a train ready to move, it would not have been abstract, but including approaching trains as well as trains ready to move, it was abstract and properly refused for this reason, if for no other. However, as before stated, the contributory negligence of the father would be no defense to this action, and the child was incapable of contributory negligence on account of its tender age. As before stated, plaintiff’s contributory negligence, if such there was, was no defense to the action, and, as his intestate was incapable of contributory negligence, many of the charges were properly refused for this reason.

Charge 5 was bad, and it would have been error to give it. The duty was on the defendant to ring the bell or blow the whistle before moving the train, or at least while it was moving. It was immaterial whether it was moving backward or forward. It would seem that the law imposes a higher duty on trainmen when moving trains backward than when moving them forward. In Sullivan’s Case. 59 Ala. 272, this court spoke on this ■subject as follows: “We asserted and again assert that if those in charge of a train engaged in the business of switching cars within a city where- people are constantly passing back of the train, having box cars in front of the engine so- as to conceal the track on which the train is moving, from the view of those having charge of it, and have no watchman or employee at or near the train to look ahead, and, if need he, to warn persons of the approaching danger or have the train stop; and if injury to any person be thereby inflicted, this is per se negligence for which an action will lie, unless the party injured, after discovering his peril, failed to use proper exertion to extricate himself therefrom.”

The evidence being undisputed that one of defendant’s trains killed plaintiff’s intestate, who was an infant, incapable of contributory negligence, and the father’s contributory negligence not being a bar to the action, and the killing having occurred in a town or village, one of the places covered by the statute (sections 3440 and 3443 of the Code of 1896), it follows that the affirmative charge could not have been properly given for the defendant.

We find no error, and the judgment of the trial court must be affirmed.

Affirmed.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.