business operation, and is governed, as to matters of damages, by a violation of prudential business rules and obligations, and, in the cases put, the parties are held responsible for violating police duties and obligations, as a general proposi. tion this distinction is correct. But here the train, possessing most destructive power, contrary to a manifest duty, is turned loose to run, unlighted and uncontro led, and kill all persons, whether trespassers or not, that may be overtaken by it. Such conduct is a violation of a manifest duty to the public, trespassers and all, not to turn such a power loose. An instruction ought to have been given in accordance with the foregoing views. The judgment is reversed, with directions to grant a new trial, and for further proceedings consistent with this opinion.

Action for Wrongful Death-Collateral Kindred-Kentucky Statute.-By the Kentucky statute, when the deceased has left neither widow nor children surviving him, no cause of action survives to his personal representative for his death by the wilful neglect of another. Kentucky Cent. R. Co. v. Wainwright's Adm'r, Ky. Ct. App., March 20, 1890.




(88 Ala. 472.) Appeal by Plaintiff-Inadequate Verdict-Questions Considered.—When the plaintiff appeals from a verdict in his favor for damages for injuries sustained, any ruling of the trial court bearing merely on the question of defendant's liability, and not affecting the amount of damages recovered, will not be considered, however erroneous it may be.

Signals—Duty of Engineer at Common Law-Collection of Houses.--In the absence of a statutory provision, the engineer in charge of a train is under no duty to ring the bell or blow the whistle when approaching a collection of houses constituting an unincorporated village.

Lookout for Trespassers-Duty of Engineer.— The engineer is not bound to keep a look-out for trespassers upon the track in the absence of some special fact or reason calling for diligence in that respect.

Same--Collection ol Houses Fenced off From Track. The fact that many people lived in the vicinity of the place where the trespasser was killed, does not constitute a special reason calling for the duty of keeping a lookout for trespassers when the track is fenced off from the adjoining houses, and there is no evidence tending to show that the track was generally used by the people in the vicinage.

Cross Negligence-When Sufficient to Overcome Contributory Negligence. -Gross negligence is not sufficient to overcome contributory negligence on the part of the person injured, unless it is negligence to a degree that is wanton, reckless or intentional.

Trespassers on Track--Evidence of License. In an action for damages for negligently killing a person who was walking upon a railroad track, evidence tending to prove that persons in the neighborhood were accustomed to cross the tracks by a foot path 100 yards or so distant from the place of the accident is irrelevant to prove a license to use the track for pedestrian purposes generally.

Same-LicenseHabit of Using Track for Pedestrian Purposes.-In an action for damages for negligently causing the death of a person who was walking upon a railroad track, evidence that other persons were in the habit of walking along the track at or near the place where the killing occurred, is inadmissible, mere acquiescense in the use of the track being insufficient to justify the trespass.

APPEAL from Birmingham City Court.

W. M. Brooks, J. M. Van Hoose and David Smith for appellant.

Fones & Falkner and Hewitt, Walker & Porter for appellee.

SOMERVILLE, J.-The action is brought for the alleged kill. ing of the plaintiff's intestate by collision with an engine of

the defendant railroad company; the injury having Case stated.

occurred while the deceased was walking on the track or right of way of the defendant. The verdict of the jury was in favor of the plaintiff, and his damages were assessed at the sum of $500.

1. It is perfectly apparent, upon the whole record, that this finding of the jury necessarily determined every issue raised

in favor of the plaintiff, excepting alone the issues Verdict for

affecting the amount of recovery. They manifestly plaintifrReview of decided that the defendant was guilty of culpable questions of negligence, for which it was liable in damages to negligence on the plaintiff

. They decided, likewise, that the deappeal.

ceased was not guilty of contributory negligence in any particular which would bar a recovery by his personal representative. The only matter which the plaintiff in the court below, who is the appellant here, can or does complain is, as we have said, the amount of the recovery. He maintains that the jury should have found a verdict for a larger sum than $500. In this aspect of the record, we have a direct authority in the case of Donovan v. Railroad Co., 79 Ala. 429, for the proposition that we will not consider as reversible error any ruling of the primary court bearing merely on the naked question of the defendant's liability, and not affecting the amount of damages recovered, however erroneous it may be in fact, because, if error, such ruling is error without injury to the plaintiff.

2. The accident which is the basis of the present action occurred on February 10, 1887, before the present Code went into operation. As the statute then stood, the duty of an engi

Duty of

lookout for

neer to ring the bell or blow the whistle was expressly required only at the places enumerated in section 1699 of the Code of 1876. This section included regular gineer to give depots, public road crossings, curves crossed by signals. public roads where the engineer could not see at least one-fourth of a mile ahead, and incorporated towns or cities. Code 1876, § 1699. The duty had not then been extended to villages, whether incorporated or not, as in section 1144 of the Code of 1886. Conceding that the collection of houses, with their inhabitants, which is shown to be adjacent to the place of the accident, constituted a village, there was no statutory duty imposed on the engineer in charge of defendant's train to ring the bell or blow the whistle at the place where Carrington, the deceased, was killed.

3. The deceased was a trespasser and had no lawful right to walk on the defendant's right of way. There was therefore no duty devolving on the engineer to anticipate or expect such an unlawful trespass ; and hence Duty to keep no duty existed to keep a vigilant lookout for the

trespassers. perpetrator, in the absence of some special fact or reason which called for diligence in this particular. Bentley v. Georgia Pac. R. Co., 86 Åla. 484, citing Womack's Case, 84 Ala. 149; Blanton's Case, 84 Ala. 154; Donovan's Case, 84 Ala. 141. As forcibly said by STRONG, J., in Philadelphia & R. R. Co. v. Hummell, 44 Pa. St. 375, " there is as perfect a duty to guard against accidental injury to a night intruder into one's bed-chamber as there is to look out for trespassers upon a railroad, where the public has no right to be." The sooner this salutary principle is understood by the public, the greater will be the security of human life, and the fewer will be the number of deaths from reckless exposures of person to the perilous danger of walking on railroad tracks, in the presence of moving engines, of which one now reads every day in the public press.

4. The third charge requested by the plaintiff, in effect, assumes that," if many people lived in the immediate vicinity where Carringion was killed,” this would constitute a special reason calling for the duty of keeping Duty where a vigilant lookout for trespassers. This hypothesis track adjoins is rather indefinite, especially in view of the fact collection of that the railroad track was not in a street of the al- houses. leged village, the adjacent houses being fenced off from the track, and there was no evidence tending to show that the track was used generally by the people in the vicinage, or even to such extent as to charge the defendant with notice of any probability of encountering a trespasser at or near the point of accident. The charge was properly refused, inde

41 A. & E. R. Cas.-35


Ala. 542

pendently of the fact that it relates only to the question of defendant's liability, and not the measure of plairtiff's damage.

5. The second and third charges assert, in substance, that the decedent's want of ordinary care—or, in other words, his

contributory negligence-would be overcome by “Gross negligence"-Con.

the "gross negligence" of the defendant, without tributory ner. regard to its nature, as evidencing the presumption ligence of of a conscious indifference to consequences. “Gross plaintifr.

negligence," generally speaking, would not be sufficient to overcome contributory negligence of plaintiff's intestate, unless it was negligence to a degree that was wanton, reckless, or intentional. We have many times so declared the rule. Bentley's Case, 86 Ala. 484; Womack's Case, 84 Ala. 149; Cook's Case, 67 Ala. 533; Frazer's Case, 81 Ala. 200; Blanton's Case, 84 Ala. 155. Even the analogous principle, which authorizes the recovery of exemplary damages, does so only when the negligence is so gross as to raise the presumption of a conscious indifference to consequences. Lienkauf v. Morris, 66 Ala. 406; Western Union Telegraph Co. 2. Way, 83

6. The fourth charge, asserting that the jury may find a Instructions certain conclusion from the state of facts hypotheArgument. sized, was merely an argument and announced no proposition of law. It was properly refused. Hussey's Case, 86 Ála. 34; Snider v. Burks, 84 Ala. 53.

7. The court properly refused to admit the evidence tending to prove that persons in the neighborhood were accus

tomed to cross the track by a footpath 100 yards or so distant from the place of the accident, in order

to get water from a spring on the east side. The decedent was not crossing at this path for any such purpose, but was walking up the track laterally, or longitudinally. Hence an alleged implied license, given to others, to cross the path to obtain water, would be irrelevant to prove a license to use the track for pedestrian purposes generally.

8. Nor did the court err in refusing to allow the plaintiff to prove that other persons were in the habit of walking along

the track at or near the place Carrington was killed. Acquiescence We so held in Womack's Case, 84 Ala. 149, 4 South. in use of

Rep. 618. The evidence does not tend to show a

voluntary license from the railroad company for the public to use its track as a highway for pedestrians; mere acquiescence not being invitation. Louisville, N. A. & C. R. Co. v. Phillips, 112 Ind. 59, 31 Am. &. Eng. R. Cas. 432; Iron Co. v. Davis, 79 Ala. 308.

We find no error in the record, and the judgment is af. firmed.

Evidence of license.


Personal Injuries—Duty to Maintain Lookout and Discover Trespassers.See Barker v. Hannibal & St. J. R. Co. (Mo.), 37 Am. & Eng. R. Cas. 292; Galveston, H. & S. A. R. Co. v. Ryon (Tex.), 34 Id. 30; Virginia Midland R. Co. v. White (Va.), 34 Id. 22; Mobile & O. R. Co. v. Stroud (Miss.), 31 Id. 443; Frazer v. South & North Ala. R. Co. (Ala.), 28 Id. 565; Scheffler v. Minneapolis & St. L. R.Co.(Minn.), 19 Id. 173 ; McAlister v. Burlington & N. W. R. Co. (Iowa), 19 Id. 108; Terre Haute & I. R. Co.v. Graham (Ind.), 12 Id. 77 ; East Tennessee, V. & G. R. Co. v. White (Tenn.), 8 Id. 65; Houston & T.C. R. Co. v. Sympkins (Tex.), 6 Id. II; Townley v. Chicago, M. & St. P. R. Co. (Wis.), 4 Id. 562 ; Marcott v. Marquette, H. & O. R. Co. (Mich.) 4 Id. 548; notes 31 Id. 417; 25 Id. 355.

Personal Injuries—Review on Appeal—Extent of injuries.—If no exception has been taken at the trial of an action for personal injuries, and the judgment has been affirmed by the general term of the supreme court, the New York court of appeals will, when the only question in dispute in an action for personal injuries is as to the extent of the injuries, dismiss an appeal on motion, the record failing to disclose any question for review. Dalzell v. Long Island R. Co., N. Y. Ct. App., Jan. 21, 1890.

Injuries to Trespassers-Gross Negligence-Misleading Instructions.-Inan action for damages for killing plaintiff's son, where the accident occurred at a place where there was no reason to expect any one to be on the track, and at a time when the law imposed on railroad companies a liability for an injury resulting in death from the negligence of an employe only when that was gross, an instruction that if the jury believed from the evidence that the proximate cause of the injury was the gross negligence of defendant's servants, that if they believed that the deceased was on the track of the defendant and the employes operating the train saw him, or could, by the exercise of proper care and attention, have seen him, and " by the use of ordinary care and caution” could have avoided injuring him, and that such employes failed to exercise reasonable care and caution," the jury might find for the plaintiff, is erroneous and misleading. Missouri Pac. R. Co. v. Brown, Tex. Sup. Ct., Nov. 29, 1889.




(Massachusetts Supreme Judicial Court, November 27, 1889.) Negligence-Construction of Track-Absence of Bunters.-A railroad track was laid upon a descending grade, which at its lower end stopped at a street. There was no bunter or other obstruction to prevent cars from going beyond the end of the track. There was a telegraph pole near the end of the track and in the street. Plaintiff, a hackman, was standing with his team in the street. Some cars suddenly and apparently without the fault of the railroad company, became detached from a train, ran beyond the end of the track, struck against the telegraph pole which was thereby broken, and the wires fell upon plaintiff's horses frightening them and causing them to injure plaintiff. Held, that the jury were authorized to find that a bunter should have been put up to guard against just such accidents, and that the evidence was sufficient to sustain a verdict for the plaintiff.

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