The Montgomery advertiser., 1903-05-14
DECISIONS OF, THE
 SUPREME COURT
SOUTHERN RAILWAY co. V. SHE'LL |
 TON

| V. TON, Admr.
 l Action against railroad company to recov- CT for alleged negligent killing oi plaintiffs intestate.--Appeal from the Circuit Court of Mobile.
 l. Contributory negligence; requisites of plea. ea.-Contributory negligence Is a spe- cial and affirmative defense. and to be plea ded at all must be pleaded with par ucularity; and no other acts of negli- gence than those specially pleaded can be proved on the trial of the case. and fl proved. they cannot be made a predicate l for verdict for the defendant
 2 Action against railroad company; contributory negligence.-In an action against a railroad company to recover damages for the alleged negligent killing of plaintiffs intestate. where the defend ant by special plea sets up the cntribu- tory negligence of the plaintiffs intestate. in that The attempted to cross the track in front of moving engine without first
 was run over and killed" and from the evidence introduced the jury might, with equal propriety. have found that the plaintiffs intestate was not guilty of tho negligence averred in said piea but was guilty of negligence in walking along or In crossing the track in front of the en- zine, after he knew of it's approach. said plea of contributory negligence is not sus- tained by the evidence, and the defendant is not entitled to the affirmative charge in its favor as to the counts charging simple negligence on It's part.
 5. aCtlOn against rallrOa0 company Tor killing of intestate; when wanton negli- gence not shown.-In an action against railroad company by an administrator to recover damages for the killing of his tate was run over and killed by one of the defendants trains about 7:i5 o'clock in January. that the place where the intes- tate was run over and killed by the en- zine of the defendant was at the inter section of two streetse in a city; that the intestate was proceeding along one of said streets and was run over while passing over the track of the defendant. The evil dence was conflicting as to the number of people who ordinarily passed the point where the intestate was stricken, at the hour of the occurrence. but there was no conflict as to the fact that on the occasion in question there. were not more than three people at or near the place other than the crew on the defendants train The evidence showed without conflict that the engine was running at the rate of or miles an hour. that the bell of the engine was being constantly rung and the headlight was burning brightly Held: That the ensiremen were not guilty of recklessness or wantonness as to the manner in which the engine was driven upon and over the place where the inte- state was killed.
 4. Same; same.-In such a case, in addi- tion to the facts as above stated, the engi- neer and fireman each testified that he was looking ahead of the engine while it was approaching and crossing the street where the plaintiffs intestate was killed. and that he saw no one in front of the engine. The flagman testified that when the engine was go or 15 feet away from the place where the intestat was run over, he saw man for a few moments about the middle of the crossing of tho street. that hc saw him by the rays of the headlight. but in a few moments the rays passed over the man and he could not see him any further as the night was quite dark. Held: That under such facts and circumstances, in conceding that the enginemen saw plaintiffs lntes- tate when 10 feet away, there was no ba- sis for a finding by the jury of wanton- ness on the part of either the engineer or hagman in falling to control the en- zine with reference to the person who was seen on the track at such distance In front of the approaching engine.
 5. Same: same.-ln such q ase in ad- diton to the facts above set out. the en- gineer and fireman testified that the light from the headlight of the engine would enable them to see person in front of tn track distinctly as close as eight to ten feet of the engine. that If such person was on the engineers si6e of the track he could see him when within two feet of the eng!nc, and the fireman could see him when within eight feet, and so could the fireman see such person. If on his side of the track when within two feet of the engine and the engineer could see him within eight feet. The plaintiffs intestate was on the track of the defendant at the intersection of a street. 15 feet in front of the approaching engine. It was fur ther shown by the evidence that neither the engineer nor fagman made any ef- fort to stop the train. and the lntestate was run over and killed Held: That un- der such evidence it was open to the jury to find that the enSinencn were guilty