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[Memphis & Charleston Railroad Co. v. Martin, Admr. etc.]

the employees or servants in charge thereof could have prevented the injury afterthe peril of plaintiff's intestate became known to them, or after she stepped on the track on which the train was approaching." "5. For further plea and answer to each of said counts, separately, defendant says: That plaintiff's intestate voluntarily left a place of safety between the side-track and the main train of defendant at said crossing and, from which position between said tracks her view of the approaching train was unobstructed, and, well knowing that defendant's train was rapidly approaching said main track, she measured the distance and took the chances and attempted to cross said track immediately in front of said rapidly moving train, and in such close proximity thereto that no preventive efforts on the part of the employees of the defendant in charge of said train could have prevented the injury to her, and by her own gross and reckless negligence and wanton conduct in this regard, proximately contributed to produce the injury complained of.”

On the trial of the cause the evidence showed the following facts: The plaintiff's intestate was killed in the incorporated town of Madison, in Madison county, Alabama, on April 8, 1891. The population of this town, at the time of the accident, was about 500. The defendant's line of road ran east and west through the town, and divided it, and the stores and residences and other houses were on the north and south side of the railroad track. A public road crossing and pass way, which was the main thoroughfare of the town, crossed the track at right angles, and it was at this crossing the plaintiff's intestate received the injuries from which she died. The postoffice and calaboose of the town were on the north side of the railroad track and a short distance east of the public crossing. From the calaboose and the postoffice leading down to the side track which ran along and north of the main track of the defendant, there was a growth of oak trees with low and outspreading branches. Two box cars, left by the defendant's employees, were standing on this side track and were located east of the public crossing where the accident occurred. Mrs. Martin's residence was on the south side

[Memphis & Charleston Railroad Co. v. Martin, Admr. etc.]

of the track. On the afternoon of April 8, 1891, Mrs. Martin, the deceased, had been visiting some friends who lived north of the railroad crossing, and but a short distance from the railroad track. On returning to her residence, which was south of the railroad crossing, and while crossing the defendant's track at the public crossing, she was run over by an engine drawing twenty-eight freight cars on the defendant's main train. The train that struck Mrs. Martin was running from east to west, and Mrs. Martin was not standing or walking along the railroad track, but was crossing it from the north side to the south side.

The evidence for the plaintiff tended to show that pedestrians and vehicles crssed and re-crossed the railroad track at the public crossing in the town of Madison, where Mrs. Martin was killed, frequently and in large numbers, and at all times during the day; that the public crossing where the accident occurred, was the main thoroughfare of the town; that the employes of defendart in charge of the train that killed Mrs. Martin had frequently passed and re-passed the public crossing, and were familiar with the same, and knew that people were accustomed to use it as the principal thoroughfare of the town; that the whistle of the engine did not blow or the bell ring at short intervals on entering into, while moving within, or passing through the town, nor did the whistle blow or the bell ring before the engine reached the public crossing; that the growth of trees, the postoffice, calaboose, and box cars on the side track obscured the view of Mrs. Martin of the train coming from the east, as she came down the public road from the residence where she had been visiting, to cross the track; that Mrs. Martin stopped and looked up and down the track just before she reached the main crossing; that the train was a through freight, and passed over the public crossing at the rate of speed from 20 to 35 miles an hour.

The testimony for the defendant tended to show that the train which ran over and killed the plaintiff's intestate was running at the rate of from 8 to 10 miles an hour; that the track from the crossing east and west was straight for a mile or more, that for one-quarter of

[Memphis & Charleston Railroad Co. v. Martin, Admr. etc.]

a mile before reaching the crossing the track was down grade; that there was a distance of 83 feet between the main track and the side track, which was north of the main track; that a person standing between the side track and the main track and looking east could see a train coming for more than a quarter of a mile; that the train which caused the accident was making a great deal of noise; that the engineer did not see the plaintiff's intestate until within about fifty feet from her; that she was walking towards the main track, and that she did not stop and look either up or down the track, that as soon as the engineer saw that she was going to try to cross, he reversed the engine, called for brakes, and did all in his power to stop the train and avert the injury; that the engine was in good condition, was well equipped, and that it was impossible for the train to have been stopped by the use of all means known to engineers, after the engineer saw that Mrs. Martin was going to cross the track.

The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

There were verdict and judgment for the plaintiff, assessing his damages at $8,000. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

HUMES, SHEFFEY & SPEAKE, for appellant.-"A person who, on approaching a place where two railroad trains had met and were standing, attempted to cross the tracks, without stopping to look and listen, is injured by one of the engines moving slowly behind him, is guilty of contributory negligence which bars a recovery, unless the evidence also shows such negligence on the part of the person or persons in charge of the train as is the legal equivalent of willful or intentional wrong; and the mere failure to blow the whistle or ring the bell, as required by statute, is not such negligence."-E. T. V. & G. Ry. Co. v. Kornegay, 92 Ala. 228; Ga. Pac. Ry. Co. v. Lee, 92 Ala. 262; H. A. & B. R. R. Co. v. Sampson, 91 Ala. 560; Leak v. Ga. Pac. Ry. Co., 90 Ala. 161; L. &

[Memphis & Charleston Railroad Co. v. Martin, Admr. etc.]

N. R. R. Co. v. Webb, 90 Ala. 185; L. & N. R. R. Co. v. Crawford, 89 Ala. 240; Frazer v. S. & N. R. R. Co., 81 Ala. 185; Gothard v. A. G. S. R. R. Co., 67 Ala. 114; Pannell v. N. F. & S. R. R. Co., 97 Ala. 298; H. A. & B. R. R. Co. v. Maddox, 100 Ala. 618; L. & N. R. R. Co. v. Richards, Ib. 365; Chewning v. Ensley Ry. Co., Ib. 493. The neglect of the engineer to ring the bell or blow the whistle on nearing a highway crossing will not relieve a traveler from the duty to look and listen before attempting to cross the railroad track.-Brown v. Texas, etc. Ry. Co., 21 Am. St. Rep. 374. Railroad track itself is a warning of danger to all who go upon it.-Schofield v. R. R. Co., 114 U. S. 615; 8 Fed. Rep. 488; Tucker v. N. Y. Cen. R. R. Co., 21 Am. St. Rep. 670; Mynning v. Detroit R. R. Co., 8 Am. St. Rep. 804; Wichita, etc., R. R. Co. v. Davis, 1 Am. St. Rep. 275; Cincinnati, etc. R. R. Co. v. Howard, 19 Am. St. Rep. 96; Durbin v. Oregon R. R. Co., 11 Am. St. Rep. 778.

WILLIAM RICHARDSON, contra.-It is well settled by all the authorities that contributory negligence is no answer to either of the counts 2 or 6 upon which the trial in the lower court took place.-M. & C. R. R. Co. v. Stewart, 91 Ala. 421; K. C., M. & B. R. R. Co. v. Crocker, 95 Ala. 412; L. & N. R. R. Co. v. Markee, 103 Ala. 160; Martin, Admr. v. M. & C. R. R. Co., 111 Ala. 670; M. & C. R. R. Co. v. Martin, 117 Ala. 367, and authorities cited; G. P. R. R. Co. v. Lee, 92 Ala. 271; Tanner v. L. & N. R. R. Co., 60 Ala. 641; L. & N. R. R. Co. v. Webb, 90 Ala. 185; s. c. 97 Ala. 314.

MCCLELLAN, C. J.-When this case came on for the trial from the judgment in which this appeal is prosecuted, the complaint contained eight counts. Of these counts, 2 and 6 charged the reckless and wanton killing of plaintiff's intestate by the employes of the defendant. Other counts ascribed the death of the intestate to the negligence of defendant's servants in the operation of a locomotive and train of cars. The defendant "for plea and answer to the complaint as a whole, and to each count thereof separately," filed pleas 1, 2, 3, 4 and 5. Plea 1 is the general issue. Pleas 2 and 3 are pleas

[Memphis & Charleston Railroad Co. v. Martin, Admr. etc.]

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of contributory negligence. And pleas 4 and 5 set up wanton and willful misconduct on the part of plaintiff's intestate resulting in her death. What further occurred on the trial in respect of the pleadings is set down in what was intended to be a judgment entry, and is the judgment entry as to jury and verdict and recovery thereon, in the following words: "and this case coming on to be heard further, the plaintiff strikes out the fifth count of his complaint, and proceeds to trial on the first (1), second (2), third (3), fourth (4), sixth (6), seventh (7), and eighth (8) counts of his complaint, and the defendant interposes demurrers to 6, 7, 8 counts, which are by the court overruled and disallowed. Thereupon defendant filed pleas numbered one (1), two (2), three (3), four (4), and five (5), and the plaintiff demurs to pleas numbered four and five, which are by the court sustained. Thereupon the plaintiff demurs to pleas numbered two and three as answers to counts two and six which are by the court sustained. The plaintiff elects to go to trial and does go to trial on counts two and six and issue being joined on pleas to said counts, comes a jury," etc., etc. Defendant's demurrer to the complaint is copied into the record, but plaintiff's demurrers to pleas 4 and 5 and 2 and 3 are not set out. If what we have quoted above stating the action of the court on the demurrers to the pleas could be looked to or considered at all, its construction would naturally be that the court sustained, not the demurrers, but, the pleas. But upon general principles, as many times declared by this court, the bench notes, or memoranda, or statements of the clerk which we have copied relative to the filing of demurrers to the pleas and the court's rulings in relation thereto are not judgments of the trial court, nor any evidence for this court of any action below, nor even of the interposition of demurrers to the pleas, and cannot be considered for any purpose. Blankenship v. Owens, 27 So. Rep. 974; Carter v. Long Bros., 125 Ala. 280, 289; Tennessee Coal, Iron & Railroad Co. v. Hanson, 125 Ala. 349, 365; Alabama National Bank v. Hunt, 125 Ala. 512, 518; Crawford v. Crawford, 119 Ala. 34; Jasper Mercantile Co. v. O'Rear, 112

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