Louisville & Nashville R. R. v. Robinson

HARALSON, J. It is admitted by counsel for defendant, that section 25 of the Code relates to a mere injury to a minor child, and that neither the father, nor the mother, — the father on account of his disabilities as named in said section being precluded from suing,- — • can bring an action for injuries to a minor child, when the death of the minor is caused. — Woodward I. Co. v. Cook, 124 Ala. 349; Williams v. S. & N. A. R. Co. 91 Ala., 635. Each of the counts in the complaint, the suit having been instituted by the mother as administratrix of the deceased child, — -the father being dead, — to recover damages from the defendant for the alleged killing of the child, contains the words, “and brings, this action under secton 25 of the Code of 1898.” The. complaint shews upon its face, that the action could not he main tained under that section. In addition to what has been stated, as to- the construcion of section 25, the suit was not instituted until more than twelve months after the child ivas killed, at which time suit under said section was barred by the statute of limitations of one year. — Code 1896, § 2801. The words of the¡ counts above quoted, that the action was brought under section 25, were entirely superfluous, and really had no proper place in them. It is admitted by counsel for defendant that this averment was a mistake. However, the complaint was demurred to, as showing on its face,- that the suit was barred by the statute 'of limitations of one year, at the time it was instituted. The plaintiff aft.erwa.rds, amended each count by striking out those words, and as thus- amended, the' complaint’ was good under section 27 of the Code, under which this action is appropriately brought,, and [329] not bar-red until two years from and after the death of the intestate. Under this'section the damages are punitive-, — to prevent homicides, — and not compensatory only a-s under section 26. — William's Cane, supra; Buckale v. T. C. & I. Co. 112 Ala. 148; A. G. S. R. Co. v. Burgess, 116 Ala. 515. The contention of defendant is, that by striking out the words referred to in the complaint, it left an action under section 26 and not under section 27 of the Code, and that the action was barred in one year.- — -Code 1896, 2801, Subd. 5. But this is a mere assumption on the part, of the pleader. If the action with those words stricken, left a cause of action under section 27, and good in all respects, under the terms of that section, it will.ho upheld as instituted thereunder. The amendment did not constitute a departure from the original complaint, nor add an entire new cause of action. The cause of action was the same after as before the amendment.- — S. F. & M. Insu. Co. v. DeJarnett, 111 Ala. 257; C. of G. R. Co. v. Foshee, 125 Ala. 201, 223; Crimm v. Crawford, 29 Ala. 626. There were demurrers to the complaint and other pleadings in the cause, and errors assigned to various rulings of the court, other than the one just considered, hut we confine ourselves to such as are insisted on. There are only two of these, — to the refusal of the court, to give charges 21 and 27, requested by the defendant. The evidence for the plaintiff tended to sIioav, that the child, who Avas betAveen 6 and 7 years of age, Avas killed where 12th street in the incorporated city of Gadsden, crosses the defendant’s track in said city; that it Avas in the- day time, and the deceased child, in company Avith tAvo others, Avas approaching the tracks of the railroad, at the time when the train Avas approaching; that as they got near the track, tAvo of them stopped and the deceased went on, across the tracks, and seeing her companions did not folloAv, turned and attempted to run back to them, and was run over by the train as she got on the track and Avas knocked off and killed; that the crossing, as one of the witnesses, — corroborated by others, — stated, “is used a great deal, hardly any time that [330] people are not passing over it, thoroughfare for foot travelers, wagons and buggies;” that the train was running fast, or at a good rate of speed, as some of the witnesses expressed it, and one or more said it was running-ten miles an hour, and that no hell was rung or whistle blown, and the child was knocked on the right side of the track, 35 feet east df the crossing, and as one of the witnesses expressed it, when the train struck her, it pitched her higher than his head. The evidence tended to- show, that the child when first discovered, was 150 feet fro-m the train, and the engineer testified that he could not stop under 100 or 125 feet; that the train ran beyond the crossing some 70 or 80 yards before it finally stopped; that the hotel, some 60 or 70 feet long, is about 32 feet from the track of the road, with a coal house in its rear and about- 15 feet, from the track. It also tended to- show, that when the child started back, the train was- about at the coal house of the hotel. The evidence of R. Nicholson for defendant was, that he saw the accident; heard the train coming and the whistle blow; saw the children running towards the track, and when near it, about fifteen feet away, the oldest child took hold of the 3roungest’s hand and stopped, and the other ran across the track, — the train being about 30 feet away, — when she turned and ran back in front of the train; that the train was going the usual good rate of speed, and he did not see any slack of its speed, until after the train struck the child; that he heard the whistle blow and the bell ring before they got to- the crossing, and that the engine knocked the child some 30 or 35 feet. He also testified that the train had all the modern appliances for its operation. Keith testified, he was fireman and was ringing the bell; that when they got in 15 or 20 feet of the crossing, the little girl ran across the track, and then ran right back in front of the engine;-that he shouted to the engineer to stop, and he applied the emergency brakes and did all he could to stop; that the speed was about ten miles; per hour; the train was well equipped, and he and the engineer were keeping a proper lookout; that the [331] engine was 5 or 6 feet from the child, when it started to re-cross the track, and nothing was omitted to be done that could have been done to prevent- striking the child; that if the train had been running 4 or 5 miles an hour,, it could not have been stepped in time to avoid striking" the child. The evidence of the engineer tended to corroborate this witness’s testimony. Charge 27 requested for defendant was: “The court charges the jury, that if the jury are satisfied reasonably from, the evidence, that tire: defendant’s engineer blew the whistle and rang the bell as the train was approaching said 12th street crossing, and that the train was run at a moderate rate of speed at or near said crossing, at the time of the accident; that plaintiff’s intestate suddenly and without' warning ran on the track of the defendant, -so near to the front of the train that it was impossible to stop the train in time to prevent the accident,, hv using all the applications known to skillful engineering, then the verdict must be for defendant.” It will be observed, that this charge, predicates the freedom of defendant from liability on the inability of the engineer to stop- the train in time to prevent the. accident, whe-> and if the child suddenly arid without warning laa on the track in front of the engine. Without reference- to the much mooted question by counsel, if it- was not the duty of the employes of the train to run it at such a speed on approaching the place, and to retain such control over it as to be able: to bring it to a full stop before striking the child, and that it would be negligence not to so operate it, it was open to the jury, under the evidence, to conclude, that the. <peed of the train might have been diminished, to such an extent, after the engineer discovered the child’s peril, as to afford her opportunity to escape. This question was clearly within the issue, and the charge in question ignored it. — C. of G. R. Co. v. Foshee, 125 Ala. 199, 221; L. &. N. R. Co. v. Orr, 121 Ala. 490, 502. The 21 refused charge was, that “No duty existed by defendant to plaintiff either as to rate of speed or as to efforts to stop the train, so. long as she was running from the track of defendant’s railroad.” This charge" is in [332] accurate and misleading in the use of the expression “No duty existed by defendant to plaintiff.” The plaintiff who is the administratrix of the child that was killed, was not present when the accident occurred, and had no connection with it or with the defendant at the time. In the matters assigned as error and insisted on as such, there does not appear to have been error, and the judgment must be affirmed. Affirmed.