Southern Railway Co. v. Crenshaw , 136 Ala. 573 ( 1902 )

SHARPE, J.

In such part of a street or public road as may comprise tire bed of a railroad, neither the railroad company nor the public have any exclusive right of occupation. Subject to the duty of being diligent in avoidance of probable danger — a duty which as between them is reciprocal — the public has a right to use the whole of the highway and the railroad company has the privilege of operating its trains. — Elliott on Streets and Roads, §§ 810, 811; Highland Ave. & Belt R. R. Co. v. Robbins, 124 Ala. 113. By averments of the first count and likewise by averments of the second count of this complaint it is shown that plaintiff’s intestate received her injuries and death through being knocked by defendant’s train off a crossing formed by the railroad and a public highway, which highway is in the first count described as a street in the incorporated town of Court-land, and in the second count is alleged to have been a public road near Oourtland. Thus it appears from each of those counts that the intestate when struck by the train was not a trespasser on defendant’s track. — H. A. & B. R. R. Co. v. Robbins, supra. It was not necessary for the complaint to negative that she was at fault in the manner in which she conducted herself while on the track iii the highway, since such fault if it existed was defensive matter.

Count- 3 of the complaint., after making certain allegations as to existing conditions and as to happenings which preceded the injury, charges the defendant with “willfully and wantonly striking plaintiff’s intestate, Caroline Turner, at and on -said crossing, inflicting a fatal wound upon her from which she then and there expired,” and count 7 avers among other-things that defendant’s employes, who were elsewhere averred to have been in charge of its train, “did recklessly and wantonly propel said engine and cars against plaintiff’s intestate, who was in the act of crossing * * * and crush tin said Caroline so that she died.” The averments we have quoted are not qualified by the other averments, and each characterizes the count in which it. appears as sufficiently charging that the defendant willfully or wantonly caused the intestate’s death. — See M. & C. R. R. Co. v. Martin. 117 Ala. 367.

Counts 4 and 5 each make a case within the doctrine declared in Ga. Pac. R’y. Co. v. Lee, 92 Ala. 271, and expressly reaffirmed in Haley v. K. C., M. & B. R. R. Co., 113 Ala. 640, which is 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 he 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, 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.” The several counts of the complaint are each free from the objection taken by demurrer.

There being no hill of exceptions the court’s action upon motions to strike out pleadings aud parts of pleadings, is not reviewable.

Replications 1 and 2 do not import that the injury was inflicted wantonly or intentionally,- — A. G. S. R. R. Co. v. Burgess, 116 Ala. 509; s. c. 114 Ala. 586; L & N. R. R. Co. v. Anchors, 114 Ala. 492, — nor do they otherwise depart from the causes of action averred in counts 1 and 2 of the complaint. Read as they must be in connection with the pleadings to which they were sequential, it is seen that those replications aver in effect that- there was negligence in the operation of the train after those who were running it saiv the intestate was in peril by reason of its movements all of which might have been proved under the averments of the last mentioned counts. Central of Ga. R. R. Co. v. Foshee, 125 Ala. 199; M. & C. R. R. Co. v. Martin, 131 Ala. 269; s. c. 117 Ala. 367. These replications were unnecessary, but they were not objectionable on the grounds specified in the demurrers, and grounds not so specified cannot be considered.

Affirmed.