Opinion
6 Div. 624.
April 4, 1918.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
Tillman, Bradley Morrow and T. A. McFarland, all of Birmingham, and Huey Welch, of Bessemer, for appellant. Goodwyn Ross, of Bessemer, for appellee.
The evidence for the plaintiff discloses that at the time of her injury she was walking in a path leading from Tenth avenue in the city of Bessemer straight across the tracks of the defendant railroad, and was on her way home from a visit, where she had been sent on business for her mother, on the other side of the switching yards in said city; that she was struck just as she had stepped over the first rail of said track by an ore car which had been standing near the path at the time she started across.
It seems to be strenuously insisted by counsel for appellant that the plaintiff, under the evidence, was a trespasser. But it is quite clear under the decisions of this court that the plaintiff, thus in the act of crossing the track, under the circumstances here disclosed, was not a trespasser. Lloyd v. Central of Georgia Ry. Co., 200 Ala. 694, 77 So. 237, and authorities there cited.
The case of L. N. R. R. Co. v. Porter, 196 Ala. 17, 71 So. 334, and other cases of like character cited by counsel for appellant, involve a longitudinal use of the track by pedestrians, and the distinction between these cases and "populous crossing" cases is briefly referred to in the Porter Case, supra.
The evidence further tends to show that the place where the accident occurred, in the city of Bessemer, is known as Tenth avenue crossing, and that the path which crosses the track at that point leads from said Tenth avenue straight across said track, and that there are quite a number of dwelling houses, as well as business industries, on the other side of the switching yards, and that this crossing has been in use by the public very generally for a number of years, as appears from a synopsis of the evidence found in the statement of the case.
It is insisted that, as there was no count of the complaint charging wantonness, the evidence offered in regard to the frequent use of this crossing by the public was inadmissible. The testimony for the plaintiff tended to show that the car which struck her was propelled by other cars, which were "kicked" loose by the engine and permitted to roll down this track and strike these stationary cars, with no one on them to keep a lookout or give warning. Under these circumstances, therefore, it was proper for the plaintiff to offer proof of a long-continued use of this crossing by the public to show a duty of lookout as to this particular place on the part of those engaged in switching cars. As was said by this court in So. Ry. Co. v. Shipp. 169 Ala. 327, 53 So. 150:
"Such evidence was competent and relevant to show the degree of care required to be exercised by the defendant's agents in moving their trains across such point of its track so used by the public as this was shown to have been used, and as tending to charge them with notice of such use by the public."
See, also, Duncan v. St. L. S. F. R. R. Co., 152 Ala. 118, 44 So. 418.
The remaining assignments of error relate to the refusal of certain charges, which we think may be sufficiently treated in a general way, and the overruling of the motion for a new trial.
Counsel for appellant insist there is some evidence from which the jury could infer that the plaintiff was over 14 years of age at the time of her injury, and a number of charges were requested, and were refused, to the effect that if she was over 14 years of age she was guilty of contributory negligence as a matter of law, and therefore not entitled to recover. This argument is based upon the theory that, notwithstanding the uncontradicted evidence for the plaintiff that she stopped, looked, and listened, and neither saw nor heard an approaching train or cars, yet her testimony to this effect must be set down with the impossible, and therefore disregarded upon the principle announced in Peters v. So. Ry. Co., 135 Ala. 533, 33 So. 332, and So. Ry. Co. v. Irvin, 191 Ala. 622, 68 So. 139. We think, however, no argument is necessary to disclose that these cases are without influence here. In the instant case the plaintiff was struck by reason of standing cars being propelled across the path where plaintiff was crossing the track, by other cars which were "kicked" loose by an engine quite a distance from the place of the injury, and permitted to run down the track without any one in charge or control thereof, or any warning given of their approach.
The physician who attended the plaintiff testified in regard to the injuries to her hands, and that he made no examination of her body other than injuries to her hands, as no complaint was made about any other injuries.
The plaintiff testified that the car struck her on the shoulder, and knocked her down on the track. The evidence tends to show that only one car passed over her, and a portion of another. There was no testimony tending to show that the plaintiff was crawling under the car at the time she sustained her injuries; but the testimony of the plaintiff was to the contrary.
The defendant requested charge No. 7, which was refused, based upon the theory that if the plaintiff's body was not mangled, or otherwise injured, except her hands and arms, that from this fact alone the jury was authorized to find that she was crawling under the car at the time she sustained the injuries complained of. It is to be reasonably inferred from the evidence that the car which struck the plaintiff was moving slowly, and while the charge might well have been refused as argumentative or invasive of the jury's province, yet we are of the opinion that it stated an incorrect proposition under the evidence of this case, and was properly refused.
We are of the opinion what we have here said sufficiently covers the assignments of error argued by counsel for appellant, with the exception of the action of the court in overruling the motion for a new trial. The evidence has been very carefully considered; and, under the familiar rule announced in Cobb v. Malone, 92 Ala. 630, 9 So. 738, we are unwilling to predicate a reversal upon this action of the court. It results that the judgment appealed from will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.