The Montgomery advertiser., 1903-08-02
SOUTHERN RAILWAY co. V, .cREN-
 SHAW. Admr Etc

l. Oplnicn by Dowdell, J.
 SOUTHERN RAILWAY co. V, .cREN- | . SHAW, Admr. Etc.
 Action Against Railroad Company by | Administrator to Recover Damages for | Killing of Intestate.-Appeal from the Circuit Court of Morgan
 l. Railroad company; reciprocal duty with punlie at crossing; when person on
 railroad track not trespasser.-Where a
 railroad track crosses street in an in- corporated town at a public road, there IS
 reciprocal duty between the public and
 the railroad company for being diligcnt in
 the avoidance of probables daneer-the
 public having the right to use the whole
 of the public highway and the railroad
 company having the privilege of operSf- | ing it's train over the crossing; and, there
 fore, a person crossing the railroad track
 where 1t intersects the highway is not a | trespasser. af' 7s. -A 2. Action against railroad company by
 administration for negligent killing of iI.- l testate; sufhciency of complaint; when
 not necessary to negative fault on the part of intestate.-In an action against a railroad company by an administrator to recover damages for the alleged negligent
 killing of plaintiffs intestate, where it
 is alleged in the complaint that at the
 time of sustaining the injuries from which l
 railroad track where it crossed the pubic
 highway, making a public crossing, 1t is
 not necessary for such complaint to neg | alive that the intestate was at fault in | the manner in which she conducted her.
 self while on the track in the highway;
 such fault, if 1t existed, being defensive
 matter.
 8. Same: sufnciency of complaint charg-
 ing willful and wanton injury-In an &C., | ton against a railroad company by an administrator to recover damages for the killing of his intestate, a count of the
 complaint is sufficient as charging that
 the defendant willfully or wantonly caus- ed the intestate's death which ayers that the plaintiffs intestatte was willfully and
 wantonly killed at public crossing with | In a suburb of an incorporated town
 where the defendants track crossed a street or highway which was largely travelled and where the defendants em- | ploYes knew that travellers and the public generally were accustomed to pass, and
 that with such knowledge t'defendanf by
 its agents or servants. with d reckless disregard of the probable consequences of
 it's acts, failed to blow the whistle or
 ring the bell of the engine within a auar- ter of mile of said crossing and to con- tinute the blowing of the whistle or ringing of the bell at short intervals un-
 til it had been reached and passed, and
 wilfully and wantonly or with reckless in- difference as to probable conseoIencea | rushed and drove an engine with cars at
 tached; over said crossing at a reckless | rate of speed of thirty-five or forty miles an hour. and wiIlfully and wantonlv | struck plaintiffs intestate at and on said crossing" inf1icting the wounds from the
 effects of which she died
 (. Samei same; same.-In such a case a count of the complaint which, after riVfes. fIaA fat ksv | existing conditions and happenings which
 preceded the injury. then alleges thet the
 defendants employees ''did reckIessly and l wantonly propel said engine and cars against plaintiffs intestate who was in
 the act of crossing said public ,.-a%sinR
 inflicting the injuries from which she died is sufficient as charging willfuI and wan ton injury on the part of the defendant 5. Same; same; same.-In such T case l counts of the complaint which allage that while plaintiffs intestate was attempting to cross defendants railroad track at a
 public road crossing just outside the cor porate limits of a town, she was struck by locomotive receiving the wounds from which she died, and that said fn- jury was inflicted upon the intestate
 through the willful reckless and wanton acts of defendants agents and servants In this, that the said public road cross
 ing was one at which great numbers of people were and had for several years
 been continuously passing on foot horse
 pack and in vehicles and was at popu- | lous locality all of which was well Known
 to the defendant and to his agents and servants. and with such knowledge de- l.i iendants agents and servants. without ringing the bell or blowing the whistle ap- preached and crossed said crossing at A highly dangerous rate of speed, towit lorty miles per hour and with reckless
 disregard of the peril' of said intestate
 and or such of the community in gen.
 eral as might be approaching or travers-
 Ing sald crossing, ran said locomotive at
 such rate or speed upon and across" said
 lntestate while crossing said cailroad
 track at said public road crossing infict-
 ing the injuries from which she died" are
 suihcient as charging willful or wanton
 injury to plaintiffs intestate
 D. Fleading and practice: rulings on motions to strike must be shown bv hill or eNceptons,-Rulings of A trial court upon motions to strike certain nlaadings must be shown by bill of exceptionss ,I7r;
 when not so presented on appeal. such
 rulings Will not be reviewed
 ! '. Action against railroad crossing for negligent killing on public crossing: suf- | ficiency Of replication.-In an action against railroad company by an admin | istrator to recover damages for the aI- { legged negligent killing of plaintins in
 testate, where the accident 0ccurr d at a { public crossing formed by the track of l the defendant crossing the public high
 way, and in certain counts of the com l platnt the negligence charged was simple