South & North Ala. R. R. v. Donovan , 84 Ala. 141 ( 1887 )

SOMERYILLE, J.

The plea of the defendant numbered one was defective in failing to aver that the employees in charge of the train used proper diligence in keeping a lookout for obstructions on the track, including in this case, the plaintiff’s son, for whose injury the father brings the present action, The plea avers that the infant son was trespassing \ipon the track, at a point where there was no public crossing, to which the defendant company had the exclusive right, and that so soon as its employes discovered the boy all available preventive measures were adopted to avert the injury. This plea admits the averments of the complaint that the alleged trespass occurred within the corporate limits of the city of Birmingham, and that the train was running at a rate of speed in excess of that prohibited by an ordinance of the city. It rests, therefore, upon the idea that there is no duty devolving on a railroad company, under these circumstances, to keep (wtj lookout for trespassers who walk upon or cross its track at any other place than public crossings, even within the corporate limits of a city — it may be a populous city, and within the business portion of it, where necessity may often compel this kind of trespassing; or common usage give color of sanction to it under the form of an implied license. Railroad companies operated by steam power are required to use very great care, and this care must be graduated to suit the exigency of increased danger, whether to employes, passengers, or the public. We can not say that it was not the duty of the persons who were managing the train, under the circumstances of this case, to keep a vigilant outlook even for trespassers, and that a failure to do so would not be negligence. The decisions of this court support the contrary conclusion, at least where the injury occurs in the streets of a city, town or village. What the rule would be where a naked trespasser on the track is injured in the open country, or elsewhere, by the failure of the railroad engineer to keep a vigilant lookout, is an open question in this State, upon which we now express no opinion. — Code, 1886, § 1144; S. & M. R. R. Co. v. Shearer, 58 Ala. 672, 678; S. & N. Ala. Co. v. Sullivan, 59 Ala. 272; Frazer v. S. & N. Ala. R. R. Co. 81 Ala, 185; Freer v. Cameron, 55 Amer. Dec. 674, note.

The demurrer to this plea was sufficient to raise the point, and it was properly sustained. And for like reason the first charge given by the court, at the request of the plaintiff, was free from error.

2. When the present action was commenced, in January, 1884, prior to the act of January 23, 1885 (Code of 1886, § 2588), two separate and distinct suits would lie for the injury alleged in the complaint — the one for the benefit of the infant, himself, which could be brought by his next friend, and the other for the benefit of the father, based on the loss of the infant’s services, and such other special damages as may have resulted from the injury inflicted. — Pratt Coal & Iron Co. v. Brawley, 83 Ala. 371; Propst v. Ga. Pac. R'y. Co., 83 Ala. 518. The recovery of the infant, therefore, in the suit brought in his name, by the plaintiff as his next friend, which is set up in the second plea as a bar to the action, was no defense to this action brought by the father for the same injury, but for his own benefit. The court ruled correctly in sustaining the demurrer to this plea.

3. The court correctly charged the jury that the running of a railroad train, operated by steam power and running through the corporate limits of a city, at a greater rate of speed than that prescribed by the city ordinance, which was in evidence, would be negligence. The precise question was decided in Gothard v. Ala. Gr. So. R. R. Co., 67 Ala. 115, and that decision is sustained by an overwhelming weight of authority, it being held generally .that a failure to comply with any regulation imposed by a city ordinance, and not shown to be unreasonable, is per se culpable negligence on the part of a railroad company. The rule is as applicable to trespassers as to others, being in the nature of a police regulation, favorable to the preservation of life and limb, and based on a duty towards the public, who have a right to act upon the belief that such an ordinance will be observed by railroads generally. It can not be said that railroad compapanies are under no obligations to take precautions to prevent injuries to intruders, especially when these precautions are required by law for the benefit of the public generally. Meeks v. So. Pac. R. R. Co., 38 Amer. Rep. 67, 70; Freer v. Cameron, 55 Amer. Dec. 674, note; Thomp. on Neg. 419, 1232; Shearman & Redfield on Neg. §§ 484, 485; Penn. Co. v. Hensil, 70 Ind. 569; 36 Amer. Rep. 191; Correll v. Railroad, 38 Iowa, 120; 18 Amer. Rep. 22.

4. The first charge requested by the defendant was properly refused for two reasons. (1) It withdrew from the consideration of the jury all inquiry as to whether or not the employes of the defendant, in the management of the train, could by the exercise of reasonable care and prudence have averted the injury, either by keeping a vigilant outlook, giving the proper signals required by law, or by conforming to the requirement of the city ordinance regulating the speed of the train. (2) It pronounced the conduct of the plaintiff, in allowing his son to go on the track, negligence per so, in any aspect of the evidence, and without regard to any inquiry as to the remoteness of the danger on the one hand, or its imminency on the other. To disentitle the plaintiff to recover, the negligence which on his part contributes to the injury must be proximate and not remote. — Meeks v. So. Pac. R. R. Co., 56 Cal. 513; 38 Amer. Rep. 67, 70; Frazer v. S. & N. Ala. R. R. Co., 81 Ala. 185. In the plaintiff’s aspect of the case, this was a question properly for the consideration of the jury, the plaintiff’s evidence tending to show that, when the boy went on the track, he observed no trains approaching, after looking in both directions.

. The charge is not so broad as the averments of the fourth and fifth pleas, upon which the plaintiff took issue.

5. The second charge was liable to the same objections the first plea was, to which, as we have seen, a demurrer was properly sustained. These objection's we need not repeat.

The third and fourth charges were properly refused, being faulty in the particulars above suggested as rendering the first charge erroneous.

The rulings of the court are, in our opinion, free from error, and the judgment is affirmed.

Clopton, J., not sitting.