Haley v. Kansas City, Memphis & Birmingham Railroad

HARALSON, J. 1. It is not denied by appellant, plaintiff below, in the complaint he filed, that the footpath, about five feet from the defendant’s railroad track, along which his intestate was walking when he was killed, was on the right-of-way of the railroad company, nor is it insisted in argument that it was not. Under the constitution and laws of this State, defendant company had the right to condemn 100 feet of land for a right-of-way.-Const., Art. I, § 24; Code of 1886, §§ 3207, and 1580, subdiv. 9. Construing the complaint most strongly against the pleader, we presume the footpath was on the right-of-way of the defendant.-Ala. Mid. Railway Co. v. Brown, 98 Ala. 648; Ga. Pac. Railway Co. v. Ross, 100 Ala. 491. 2. It is a well settled rule of law that when one walks on the track or right-of-way of a railroad company, without invitation or license, he is a trespasser, to whom the company owes no duty except the exercise of reasonable care and diligence to avoid injuring him, as-soon as his peril becomes apparent to the company’s employes. It is only when the employes of the company operating the train fail to exercise reasonable care, to avoid injur [650] ing Mm after tlie trespasser has been discovered, and his peril of injury becomes apparent, that they are held to be guilty of wantonness, or recklessness, such as will overcome the contributory negligence of the trespasser. Bentley v. Ga. Pac. Railway Co., 86 Ala. 485; Cen. R. R. & B. Co. v. Vaughan, 93 Ala. 209; Glass v. M. & C. R. R. Co., 94 Ala. 581; Nave v. Ala. Gr. So. R. R. Co., 96 Ala. 264; Ga. Pac. Railway Co. v. Ross, 100 Ala., 491. In Nave's Case, supra, quoting from the Glass Case, it was said : “One who is injured in consequence of being negligently on a railroad track cannot recover, unless the railroad employes are guilty of such gross negligence or recklessness as amounts to wantonness or an intention to inflict the injury ; and that this wantonness or intention to do wrong, can never be imputed to them, unless they actually know (not merely ought to know) the perilous position of the person on the track, and with such knowledge, fail to resort to every reasonable effort to avert disastrous consequences. And this doctrine applies as well to densely populated neighborhoods in the country, and to the streets of a town of city, as to the solitude of the plains or forest.” The doctrine thus stated, it was further said, “must be taken in connection with, and as limited in, the case of Ga. Pac. Railway Co. v. Lee, 92 Ala. 271, to the effect, ‘That to run a train at a high rate of speed, and without signals of approach, at a point where the trainmen have reason to believe there are persons in exposed positions on the track, as over an unguarded crossing in a populous district or a city, or where the public are wont to pass on the track with such frequency and in such numbers, facts known to those in charge of the train, as that they will be held to a knowledge of the probable consequences of maintaining great speed without warning, so as to impute to them reckless indifference in respect thereto, as would render their employer liable for injuries resulting therefrom, notwithstanding there was negligence on the part of those injured, and no fault on the part of the servants after seeing the danger.’ ” From what has been said we may pass on the demurrers to the different counts in the complaint. The 1st, 2d, 3d, 4th, 5th, original 6th, and 8th counts, and the 2d amended count, were all defective, in that they show the plaintiff’s intestate was a trespasser on the [651] right-of-way of the railroad, at the time he was killed, and they do not aver willfulness and wantonness in causing the injury on the part of the employes controlling and operating the train. The sixth and eighth counts (the 7th having been withdrawn) are the only ones in the original complaint, in which there was an attempt to aver willfulness or wantonness. The averment of the 6th is, that defendant’s “servants and employes knowingly and willfully propelled a train of cars on the track of defendant’s road, having a plank needlessly placed on one of its cars so being propelled, * * * * so as to extend over and upon the pathway aforesaid,” and “that the death of said S. F. Pennington was due to the willful and knowingly propelling said train of cars on the track of defendant’s road, at and by the place aforesaid, while having the plank or timber aforesaid projecting over and beyond the side of said train as aforesaid.” The aver-ments of the 8th count in this respect, are substantially the same as those in the 6th, though differing somewhat in verbage. It will be seen that these averments are no more, than that the willfulness or wantonness attempted to be averred, consisted in propelling the train, and in knowingly and intentionally placing on a car belonging to the train a plank that extended over the foot-path, which are not proper allegations of willfulness or wantonness in causing the injury. 3. The 6th count, as amended, and the 9 th and 10th counts, allege substantially the same thing, — “that said path or foot-way was commonly used by pedestrians, so that many persons were daily and constantly passing and repassing thereon, ’ ’ which fact the defendant, its servants and employes in charge of said train well knew, and knowing the danger to such persons, and in utter disregard of and indifference to their safety, did knowingly and willfully place on one of the cars in said train, the said wooden plank, [as described in, the other counts,] and did knowingly, willfully or intentionally propel said train of cars along the track at the place designated and thereby caused the death of plaintiff’s intestate.” If the facts here averred be true, it was the duty of those operating the train, — which arose from likelihood that at that place there would be persons on the track, — to guard against inflicting death or injury at such a place by means of an extraordinary danger of [652] defendant’s own creation. Under such, circumstances, the law imputes to those operating the train a knowledge of the perilous condition of persons passing at such a place, neglect to provide against which is recklessness such as amounts to wantonness. The duty to keep a lookput for persons is not specially imposed'TylffaUite,' and yetTR’Ts the duty of traiSmeh'wlieirfuiinihg through a city, town dr village thickly populated” and if islikely that “persons will be on the track,_''to_ keep a lookout. ‘ ‘The duty arises when the circumstances and conditions call for its exercise, and which are known to those operating the train.”-S. & W. R. R. Co. v. Meadors, 95 Ala. 137; C. & W. Railway Co. v. Wood, 86 Ala. 164; Nave’s Case, supra. There is no reason why this doctrine does not apply as well to densely populated neighborhoods in the country, when the conditions exist such as are here averred, as to cities, towns and villages. It is the likelihood of peril to the safety of passers-by, known to defendant’s employes, that makes the duty, and not the place itself.-Nave’s and Lee’s Cases, supra. There was error in striking out the italicized portions of these counts, and in sustaining the demurrer to them. Reversed and remanded.