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Compton v. Western Ry. of Alabama

Supreme Court of Alabama
Mar 24, 1927
112 So. 148 (Ala. 1927)

Opinion

3 Div. 761.

March 24, 1927.

Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.

Hill, Hill, Whiting, Thomas Rives, of Montgomery, for appellant.

The evidence tended to show that the train was backed over the crossing in the nighttime, without lights or other warnings to travelers on the highway, and without any one on the lead car. This made a case of primary, simple negligence on the part of the defendant. Southern Ry. Co. v. Shipp, 169 Ala. 332, 53 So. 150; Payne v. Roy, 206 Ala. 435, 90 So. 605; N.C. St. L. v. Prince, 212 Ala. 499, 103 So. 463; S. N. A. v. Sullivan, 59 Ala. 282; S. M. R. Co. v. Shearer, 58 Ala. 677. It cannot be said as a matter of law that plaintiff was guilty of contributory negligence. Peters v. Southern Ry. Co., 135 Ala. 537, 33 So. 332; Bailey v. Southern Ry. Co., 196 Ala. 135, 72 So. 67; Central of Ga. R. Co. v. Hyatt, 151 Ala. 355, 43 So. 867. The evidence made a case for the jury on the issues of subsequent negligent and willful and wanton conduct. Central of Ga. R. Co. v. Porter, 207 Ala. 417, 93 So. 394; Thompson v. M. O., 211 Ala. 646, 101 So. 441; Snider v. A. G. S., 210 Ala. 119, 97 So. 209; Hines v. Champion, 204 Ala. 227, 85 So. 511; Hines v. Paden, 204 Ala. 592, 87 So. 88; Payne v. Roy, supra; L. N. v. Davener, 162 Ala. 663, 50 So. 276.

Steiner, Crum Weil, of Montgomery, for appellee.

Plaintiff, by the physical facts and testimony in the case, was shown conclusively to have been guilty of contributory negligence, proximately causing his damage. Defendant was entitled to the affirmative charge. L. N. v. Calvert, 172 Ala. 597, 55 So. 812; L. N. v. Moran, 190 Ala. 122, 66 So. 799; A. G. S. v. Smith, 196 Ala. 77, 71 So. 455; L. N. v. Cloud, 207 Ala. 373, 92 So. 550; Ball v. Semet Solvay Co., 208 Ala. 649, 95 So. 50; Rothrock v. A. G. S., 201 Ala. 308, 78 So. 84. Plaintiff's duty in the premises required that he stop the running of his motor in order that he might hear the approach of the train. L. N. v. Turner, 192 Ala. 392, 68 So. 277; Chicago, etc., Co. v. Biwer (C.C.A.) 266 F. 965; Davis v. Chicago Ry. (C.C.A.) 159 F. 10, 16 L.R.A. (N.S.) 424. Plaintiff's mere denial that he neither heard nor saw the train was not sufficient to raise a conflict in the evidence. Peters v. Southern Ry., 135 Ala. 533, 33 So. 332; Southern Ry. v. Irvin, 191 Ala. 622, 68 So. 139; L. N. v. Jenkins, 196 Ala. 144, 72 So. 68; Bailey v. Southern Ry., 196 Ala. 133, 72 So. 67; Hines v. Cooper, 205 Ala. 72, 88 So. 133. The doctrine of contributory negligence as matter of law, in failure to stop, look, and listen, is equally applicable at night as in the daytime, where an engine carries no headlight. Bailey v. Southern Ry., supra. Defendant was clearly entitled to the affirmative charge as to subsequent negligence and willful or wanton conduct. Hines v. Champion, 204 Ala. 228, 85 So. 511; N.C. St. L. v. Vincent, 190 Ala. 94, 66 So. 697; A. G. S. v. Smith, supra.


If the jury believed plaintiff's testimony that defendant's train approached and went upon the crossing without any warning signals, and without any light visible on the cars, they could have properly found that defendant was guilty of simple negligence in handling its train on the occasion of this collision, giving to plaintiff a cause of action. Grauer v. A. G. S. R. R. Co., 209 Ala. 568 (12), 96 So. 915.

Very clearly, the evidence does not show that the trainmen were guilty of any negligence after the discovery of plaintiff's peril. The train was moving at a speed of about 4 feet a second, and a stop within 25 or 30 feet after plaintiff was sighted — that is, within six or seven seconds — permits no inference of culpability in that regard, as against the undisputed testimony of the trainmen that they took the promptest and most effective action available to prevent the collision. Nor can any inference of wantonness arise from the mere fact that the train was backed towards and onto the crossing at the very slow speed of 2 or 3 miles an hour, though without end lights, or flagging ahead, or warning signals from the engine, even though the crossing was a constantly used public highway. Bailey v. South Ry. Co., 196 Ala. 134, 72 So. 67; Grauer v. A. G. S. R. R. Co., 209 Ala. 568, 96 So. 915.

It results that the propriety of giving the general affirmative charge for defendant depends upon defendant's showing by undisputed evidence that plaintiff was guilty of contributory negligence, as a matter of law, on the occasion of his injury; and it is to be presumed that the charge was given on that theory of the evidence.

Taking plaintiff's own testimony, in connection, of course, with all the other evidence, defendant's view of it is that contributory negligence was shown as a conclusion of law, (1) because plaintiff stopped his car 7 or 8 feet from the railroad track, and did not thereafter look or listen for trains while covering that distance up to the track; and (2) in any event, looking or listening, he was bound to have seen or heard this train after he stopped his car, and before he went on the track.

1. We are unable to say, as a matter of law, that plaintiff could have prudently driven his car, before stopping for the crossing, to a point nearer than 7 or 8 feet to the railroad track; or that, in traveling that distance to the track after starting his car, he could have seen or heard the approaching train any better than he could before starting.

2. We are also unable to say, as a matter of law, that, after stopping, plaintiff must have seen or heard, and did actually see or hear, the train, if in fact he then looked and listened.

There was evidence that the garage light shone over the crossing, but there was nothing to show with certainty that an ordinary observer, from plaintiff's position, must have seen a train without lights through the existing darkness.

So, also, there was evidence that the train was "making noise," but nothing to show how much noise it was making; and we cannot judicially know, as we would of an ordinary train of cars running at high or even very ordinary speed, that this train of four box cars, pushed slowly along at a speed of 2 or 3 miles an hour, must have made enough noise to be heard by any one who stopped and listened.

In either of the above cases it would be difficult to escape the inference, as a matter of fact, that plaintiff would have both seen and heard this train if he had stopped and looked and listened; but the inference would be one of fact merely for the jury to draw, and not an imperative conclusion of law to be declared by the court.

These considerations lead to the conclusion that the issue of contributory negligence was one of fact which should have been submitted to the jury, and that the general affirmative charge for the defendant was erroneously given.

It results that the judgment must be reversed, and the cause remanded for another trial.

Reversed and remanded.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.


Summaries of

Compton v. Western Ry. of Alabama

Supreme Court of Alabama
Mar 24, 1927
112 So. 148 (Ala. 1927)
Case details for

Compton v. Western Ry. of Alabama

Case Details

Full title:COMPTON v. WESTERN RY. OF ALABAMA

Court:Supreme Court of Alabama

Date published: Mar 24, 1927

Citations

112 So. 148 (Ala. 1927)
112 So. 148

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