Opinion
7 Div. 100.
November 25, 1920.
Appeal from Circuit Court, Etowah County; W. J. Martin, Judge.
Goodhue Brindley, of Gadsden, for appellant.
The evidence established the facts that plaintiff's agent was guilty of contributory negligence as a matter of law. 196 Ala. 133, 72 So. 67; 192 Ala. 392, 68 So. 277; 172 Ala. 560, 55 So. 218; 151 Ala. 407, 44 So. 392; 202 Ala. 222, 80 So. 44; 201 Ala. 308, 78 So. 84; 49 N.J. Law, 473, 9 A. 680. On these authorities defendant was entitled to a directed verdict on the simple negligence counts.
Disque Disque, of Gadsden, for appellee.
The question of who was at fault was for the jury, and the court did not err in refusing the affirmative charge. 90 Ala. 185, 8 So. 518, 11 L. R A. 674; 151 Ala. 355, 43 So. 867; 16 Ala. App. 308, 77 So. 458; 172 Ala. 597, 55 So. 812; 172 Ala. 560, 55 So. 218; 128 Ala. 546, 29 So. 602. The accident happened at a public crossing, and the burden was on the defendant to show that it was not guilty of negligence. Sections 5473-5476, Code 1907; 151 Ala. 355, 43 So. 867; 142 Ala. 238, 37 So. 929, and authorities cited.
It is strenuously insisted by counsel for appellant that the court committed error in refusing the general affirmative charge asked by the defendant, upon the theory of contributory negligence on the part of plaintiff's agent in attempting to cross the track of the railway without observing the rule requiring that he should have stopped, looked, and listened. This we consider the question of prime importance on this appeal.
"The principles of law which control cases of this kind are thoroughly well settled by our decisions. One who is about to cross a railroad track 'must stop so near to the track, and his survey by sight and sound must so immediately precede his effort to cross over it, as to preclude the injection of an element of danger from approaching trains into the situation between the time he stopped, looked, and listened and his attempt to proceed across the track. * * *' This language is quoted with approval in L. N. R. R. Co. v. Calvert, 172 Ala. 597, 55 So. 812, where it is further said that the law imposes 'a continuing duty to see that the way is clear before attempting to cross.' Where obstructions interfere with his view of the track, it is all the more his duty to stop, look, and listen at a point where he can best see and hear, and, seeing or hearing, avoid, an onrushing train. L. N. R. R. Co. v. Williams, 172 Ala. 500, 55 So. 218, collecting many authorities." L. N. R. R. Co. v. Turner, 192 Ala. 392, 68 So. 277.
See, also, Bailey v. Sou. Rwy. Co., 196 Ala. 133, 72 So. 67; A. C. L. Ry. Co. v. Jones, 202 Ala. 222, 80 So. 44; Cent. of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 27 So. 1006.
Appellee has sought to avoid the effect of this well-recognized rule by the argument that the evidence was sufficient for a submission to the jury upon the question as to whether or not the nonobservance of the rule was the proximate cause of the injury, and this upon the theory the jury were authorized to infer from the evidence that, had the plaintiff stopped his car, looked and listened, he could not have seen or heard the approach of the onrushing train, and therefore the accident would not have been averted. We do not think this position is well taken. The driver of the car saw the train when it was 150 feet distant, and while his car was upon the track. Considering the undisputed evidence as to the speed of the train and also that of the car as it approached the track, it appears appellant's counsel has demonstrated by mathematical calculation that, had the car been brought to a full stop only a few feet from the track, and sufficient time elapsed to look and listen, the train would have reached the crossing before the car, and the accident avoided.
However, aside from this theory, we are persuaded there is no material conflict in the evidence to the effect that, had the plaintiff observed the rule and stopped, looked, and listened before going on the track, he could and would have seen the approaching train. Certain excerpts from the testimony of the driver of the car, plaintiff's son, will appear in the statement of the case, which we think show conclusively that had he stopped his car and looked in the direction of the train, he would have seen the same. True, the witness did in a very general way deny that "one could not see until he got right on the track," but, when he testified as to the actual facts, he admitted there was nothing to obstruct his view for a distance of 10 feet from the track, which at this point was straight for one quarter of a mile, and on redirect examination stated that he could have seen it before he reached the rails with the car "for about 50 yards up the track." Indeed, the photographs, as well as all the evidence of actual facts offered by plaintiff, support this view. It is without dispute that he did not stop the car. The following from Peters v. Southern Rwy. Co., 135 Ala. 533, 33 So. 332, is applicable in this connection:
"When facts are admitted which conclusively establish another fact, the mere denial by a witness of the existence of the fact so established does not and should not create that material conflict in evidence which would require a submission of the issue to the jury."
See, also, Richards v. Sloss-S. S. I., 146 Ala. 254, 41 So. 288.
There is nothing in the case, — and it is not so insisted by counsel, — that tends at all to support any theory of subsequent negligence. We have examined the evidence with great care, and are persuaded that the plea of contributory negligence interposed by the defendant was sustained without material conflict in the evidence, and upon this theory the defendant was entitled to the affirmative charge.
We see no necessity for a consideration of other questions, but will note in passing that, in our opinion, the objection to the question of plaintiff's witness as to whether or not the train that passed was a regular or irregular one should have been sustained. The duty on the part of the plaintiff to stop, look and listen was the same regardless of the character of the train, and the evidence was therefore irrelevant to any issue presented. As to whether the testimony was so prejudicial as to cause a reversal need not be determined.
The judgment is reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.