St. Louis-San Francisco Ry. Co. v. Hicks , 19 Ala. App. 397 ( 1923 )

The allegation in the complaint to which objection is taken by demurrer is:

"Negligently caused or allowed said engine or locomotive to emit a large and unusual or unnecessary amount of steam and noise, and as a proximate result thereof said mule was frightened, etc."

It is insisted that the allegation being in the alternative, unless both alternatives are sufficient, the demurrer should be sustained. This, of course, would follow, but in our opinion either alternative averment colluding with the averment that the injury complained of was the result of the negligence alleged is sufficient. L. N. R. Co. v. Kelly, 198 Ala. 648,73 So. 953. If, as is contended, the allegation should have contained the additional averment that such unusual noise was calculated to frighten mules of ordinary gentleness, a demurrer to this would doubtless have been interposed to the effect that it stated a conclusion.

It has been held in several cases that the mere want of necessity for making unusual noises in the operation of locomotives and trains, without more, is not such negligence as would warrant a liability; and, in a case similar to the present case, the Supreme Court, in summarizing actionable negligence, inferentially say there must be wantonness, negligence after discovery of peril, or reckless negligence before the discovery of peril. L. N. R. Co. v. Kelly,198 Ala. 648, 653, 73 So. 953.

Under the evidence there was no wantonness, and neither do we think there was negligence after discovery of peril. This leaves us to consider the evidence as applied to the third instance. In view of the rulings of both the Supreme Court in Stringer v. Ala. M. R. Co., 99 Ala. 397, 13 So. 75, and Court of Appeals in So. Ry. v. Goins, 1 Ala. App. 370,56 So. 253, we may eliminate the word "reckless" from the rule as stated in L. N. R. Co. v. Kelly, supra, leaving the charge to the proven one of negligence arising out of the facts of this particular case.

Did the defendant owe the plaintiff a duty? If the defendant's engineer saw the plaintiff approaching from the opposite direction alongside the track, and in close proximity thereto, driving a mule hitched to a buggy, and the road on which plaintiff was traveling continued to parallel defendant's track to a point where the locomotive and plaintiff must pass in close proximity to each other, the defendant owed the duty to plaintiff to operate its locomotive at that time, without causing or allowing any "large and unusual or unnecessary noise." This under the evidence was a question for the jury. Did the defendant, at the time alleged, and with a knowledge of the close proximity of plaintiff and her mule, cause or allow its locomotive to emit large and unusual or unnecessary noise? This too, was a jury question. That there was damage is not denied, and its proximate cause was for the jury.

The motion for a new trial was properly overruled.

The judgment is affirmed.

Affirmed.