101 So.2d 265 (Ala. 1958), 3 Div. 696, Louisville & N.R. Co. v. Johns

CourtSupreme Court of Alabama
Writing for the CourtCOLEMAN, Justice.
Citation267 Ala. 261,101 So.2d 265
Docket Number3 Div. 696.
Date06 March 1958
PartiesLOUISVILLE & NASHVILLE RAILROAD COMPANY v. Edgar L. JOHNS, as Adm'r.

Page 265

101 So.2d 265 (Ala. 1958)

267 Ala. 261

LOUISVILLE & NASHVILLE RAILROAD COMPANY

v.

Edgar L. JOHNS, as Adm'r.

3 Div. 696.

Supreme Court of Alabama.

March 6, 1958

Page 266

[267 Ala. 262] Steiner, Crum & Baker, Montgomery, and B. E. Jones and R. L. Jones, Evergreen, for appellant.

[267 Ala. 263] Jones & Nix, Evergreen, for appellee.

Page 267

COLEMAN, Justice.

This is an action by the administrator of the estate of J. A. Johns, deceased, to recover damages from Louisville and Nashville Railroad Company, a corporation, for the death of plaintiff's intestate, who was run over by the cars of defendant on its tracks in Evergreen, Alabama.

On the former appeal, Louisville & N. R. Co. v. Johns, 258 Ala. 440, 63 So.2d 574, 578, we held there was a fatal variance between the pleading and proof in that all counts of the complaint alleged that deceased was injured while he was crossing the tracks of defendant, but the '* * * proof * * * was undisputed that the deceased at the time of his injury was walking longitudinally along the track of the defendant and between the rails.'

We further held on the former appeal:

'* * * that the defendant was entitled to the general affirmative charge as to count 4 (charging simple negligence) because there was no proof of any negligence on the part of the defendant.

* * *

* * *

'* * * the deceased, under the undisputed evidence, was guilty of contributory negligence and for this reason the defendant was entitled to the affirmative charge as to count 4. (Citations omitted.)

* * *

* * *

'* * * we fail to see how the facts in this case can substantiate a charge of subsequent negligence. * * *

* * *

* * *

'We do not consider that there was evidence to support the charge of wilful or wanton wrong set out in counts 6, 7 and 8 and the general charge which was requested separately as to each of these counts should have been given.' (Parenthesis added.) 258 Ala. 440, 447, 448, 450, 63 So.2d 574, 580, 581, 584, supra.

On the second trial, the evidence was in dispute as to whether deceased was crossing the track or walking longitudinally between the rails, and on this second trial the jury found a verdict for plaintiff on which judgment was entered. Defendant appeals from that judgment and from the judgment overruling defendant's motion for a new trial.

For a detailed description of the place where the injury occurred and the movements of the train, we refer to the opinion on former appeal, supra.

To summarize briefly, the tracks of defendant are located in the center of the city of Evergreen, the general direction of the tracks being north and south. Defendant has there four straight, parallel, connected tracks, and there is a street on each side of the railroad open up to the edge of the railroad right of way. These streets are called East Front Street and West Front Street, respectively. The injury to deceased occurred on the easternmost track, which is called the team track.

The L & N Station is at the south and of town. Just at the north end of the station over the four tracks and at right angles thereto, there is a public crossing known as the Depot Crossing which connects East Front Street and West Front Street. Four hundred and twenty-three feet north of the Depot Crossing is another public crossing connecting East and West Front Streets. This latter crossing is called the Rural Street Crossing. The injury to deceased occurred on the team track between these two grade crossings. Count 6 of the complaint alleges that deceased was proceeding across the tracks 'at a point 250 feet South [267 Ala. 265] of the Rural Street Crossing,' and Counts 7 and 8 fix the point at 'to-wit: 250 feet South of the Rural Street Crossing.' As we understand the testimony, the point where deceased was injured was approximately 150 feet south of Rural Street Crossing. The tracks between the Depot Crossing and Rural Street Crossing appear to be almost level, although there was

Page 268

testimony showing a rise of 91/100ths of a foot to the north on the team track.

Over defendant's objection, evidence was introduced to show that numbers of people were accustomed to cross the defendant's railroad tracks between West Front Street and East Front Street, over the entire area between the two crossings, between the hours of eleven o'clock and noon. W. A. Suddith placed the number of persons at 25 to 30; J. D. Hyde at around 50 or 60; H. L. Riley at sometimes a dozen, sometimes maybe fifty; M. E. Wilson at 8 or 10.

About noon, on the day of the accident, a local freight train of defendant, going south, came in on the second track from the west and traveled on south until the caboose was south of the depot crossing. After receiving instructions at the depot, the train crew switched the engine with the merchandise car attached, over to the team track and there picked up three box cars and also a car of pulpwood. The car of pulpwood was the last car from the engine. The trainmen proceeded to 'kick' or push the pulpwood car onto the main track, which is the second track from the east. The pulpwood car stopped and was 'chocked' on the main track between the two crossings. The engine with four cars attached pulled back south onto the team track.

After pulling the cars onto the team track, and after the switch from the main line to the team track had been closed, the engine with the cars behind it, was backed up north along the team track to give the cars an impetus towards the north. After receiving this impetus the last three box cars were uncoupled from the engine and permitted to roll free, the purpose being to cause them to roll on north along the team track across the Rural Street Crossing until they should stop. The testimony as to the speed of the cars when they hit Johns varies from 4 or 5 to 15 or 20 miles per hour. No person was on the cars after they were cut free from the engine, which was stopped in the vicinity of the Depot Crossing. This operation is referred to as a kicking or flying switch.

During the switching operations, the witness Bethea, trainman employee of defendant, was protecting the Depot Crossing, and the witness Hicks, flagman, was stationed at the Rural Street Crossing. As to his duty to direct the switching movements, Hicks testified as follows:

'Q. And whose duty was it to get the switching orders? A. The conductor would get them.

'Q. And when the conductor got them who did he pass them on to? A. To me.

'Q. He passed them on to you. And then was it--whose duty was it to pass it on and direct the engineer as to the movement? A. I did it.'

At some time during the switching operations, plaintiff's intestate, Johns, entered the railroad right of way on the west side at a point between the two crossings. The testimony is without dispute that he walked directly across the tracks of defendant without stopping, until he reached the easternmost track, known as the team track.

While the three cars were rolling north along the team track, they struck the intestate, Johns, at a point 150 feet, more or less, south of the Rural Street Crossing. As a result of injuries there received Johns died.

As we have noted above, the testimony on the first trial was undisputed that Johns reached the team track a safe distance north of the rolling cars, and then turned and [267 Ala. 266] walked north along the team track between the rails until he was struck from behind by the cars. On the first trial, Floyd Dees, who was an eyewitness, testified for plaintiff. Dees' testimony was to the effect that Johns, when injured, was walking north between the rails of the team track. On the second trial, Dees was not placed on the stand by either party.

Page 269

On the second trial, plaintiff placed on the stand Charles Barfield who did not testify on the first trial. Pertinent portions of Barfield's testimony are as follows:

'Q. Where did you first observe him (Johns)? (Par. Add.) A. Just beyond the railroad tracks there, this side.

'Q. Beyond what we call the team track, or the main track? A. Sir?

'Q. The easternmost track next to the West front street over there where you observed him? A. Yes sir.

'Q. That's what is known as the team track isn't it, or do you know? A. I don't know about that.

'Q. But it was the easternmost track, you observed him just about the time he got there and started to cross? A. That's right.

'Q. Well now, Mr. _____ did he just come right straight across the track? A. He was coming straight across, you might say straight.

'Q. And as he came, why what happened to him? A. Well he was down in front, going across the road and when he discovered the shape he was in he gave a jump looked like, and fell and the wheels cut his legs.

'Q. Did you see--did you hear anybody say anything to him? A. No I didn't.

* * *

* * *

'Q. Now, you were looking right at Mr. Johns coming across, did you see those loose box cars coming down the railroad? A. I saw them when they hit him.

* * *

* * *

'Q. Then you could see the box cars couldn't you? A. Yeah, I saw them.

'Q. And he just stepped right in front of them as he was going across?

A. He was going across the railroad when I saw him.

'Q. Going across the railroad tracks? A. Yes sir.

'Q. Did he stop on the track? A. No he didn't stop, he just looked around and it was so close on him, I reckon it scared him and he saw he couldn't get across and he made kind of a lunge. He tried to get over.

'Q. Then he just stepped right in front of them did he not? A. No, he didn't step in front of them, he was down on the track before he even saw them.

* * *

* * *

'Q. Did he ever stop at all? A. If he did, I didn't see him.

* * *

* * *

'Q. Well, I'm asking you if he stopped at any time? A. No, he didn't stop.

'Q. Then he had to walk right in front of the cars did he not, if he never did stop and didn't have time to go across? A. I don't know whether you call it walking in front of it or not, he was crossing.

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