The Montgomery advertiser., 1904-10-30
HeAd-Notes Of the Decisions
 of Alabama Supreme Court

LOUISVILLE AND NASHVILLE R. R.
 CO, vs. ROBINSON, Admx.
 Action by administratix against rail- < road company to recover for alle-
 ged negligent killing of a child
 Appeal from the Circuit Court of
 Etowah. y +
 1. Action against railroad company for killing a child; amendment of com pIaint when no departure.--In an ac- tion against a railroad company brought by the mother of a deceased cniid as the administratix of the childs estate, to recover damages for the al- legged negligent killing of said child, where in the complaint 1t is averred that the plaintiff as such administra- trix brings this action under Section 25 of the Code" a subsequent amend ment of said complaint, by striking out the words just quoted, does not constf- tute a departure from the cause of ac- tion as stated in the original complaint, nor add an entire new cause of action.
 2. Action against railroad company for killing child charge as to impossi- bility to stop train.-In an action against a railroad company to recover damages for.the alleged negligent kili- ing of a child. where the evidence shows that the accident occurred at q public street crossing in a city, and that as the train was approaching such crossing, the child ran across the track in front of the approaching train, and then suddenly turned around and start ed back across the track, and was kfu- ed in attempting to so go back across the track, and the evidence Tor the plaintiff tended to show that the train was going at a rapid rate of speed, while the evidence for the defendant tended to show it was going at a rate . not exceeding ten miles an hour, and that the whistle was blown and the bell was rung. and after the child was discovered upon the track in front of the train, the engineer did all in his power to stop the train. but there was evidence from which the jury might conclude that the speed of the train might have been diminished to such an extent after the engineer discovered the child's peril, as to have afforded her an opportunity to escape, a charge is erroneous and properly refused which instructs the jury that if "Plaintifr's intestate suddenly and without warm ing ran on the track of the defendant. so near to the front of the train that 1t was impossible stop the train in time to prevent the accident by using all the applications known to skillful engineer ing, then the verdict must be for the defendant"
 3. Action against railroad company by administratix; charge of court to 5ury.-In an action against a railroad company by an administratrix to re- eover damages for the alleged killing of plaintiffs intestate, a charge to the jury requested by the defendant, which instructs the jury that NO duty exist cd by defendant to plaintiff either as to rate of speed or as to efforts to stop the train so long as she was running from track of defendants railroad" is inaccurate and misleading in the use of expression mo duty existed by de- fendant to plaintiff" the plaintiff being the administratix of the person who was killed, and not having been pre- sent when the accident occurred, and having no connection with 1t, or with the defendant at the time.
 Affirmed.
 Opinion by Haralson, J.