Louisville & Nashville Railroad Company v. Byrd

• Decision Date: 01 February 1962
• Docket Number: No. 18934-18936.,18934-18936.
• Citation: 298 F.2d 586
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Rosalie BYRD, Appellee. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Ollie BYRD, Sr., Appellee. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Ollie BYRD, Jr., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

298 F.2d 586 (1962)

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Rosalie BYRD, Appellee.

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Ollie BYRD, Sr., Appellee.

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Ollie BYRD, Jr., Appellee.

Nos. 18934-18936.

United States Court of Appeals Fifth Circuit.

February 1, 1962.

COPYRIGHT MATERIAL OMITTED

C. B. Arendall, Jr., W. B. Hand, Mobile, Ala., for appellant, Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., of counsel.

Harry H. Riddick and Oliver J. Latour, Jr., Mobile, Ala., for appellees, Hamilton, Denniston, Butler & Riddick, Mobile, Ala., of counsel.

Before RIVES, CAMERON and BROWN, Circuit Judges.

RIVES, Circuit Judge.

These three cases arise out of a collision at a railroad crossing and were consolidated for trial. The automobile was being driven by Mrs. Rosalie Byrd and was also occupied by her son, Ollie Byrd, Jr., the owner of the vehicle. Ollie Byrd, Sr., the husband of Rosalie Byrd, sued for expenses of treatment, and loss of services and consortium. Judgments were entered upon jury verdicts in favor of Rosalie Byrd, $18,500.00, Ollie Byrd, Jr., $7,500.00, and Ollie Byrd, Sr., $4,500.00.

The collision occurred at about 2:30 o'clock on the morning of Sunday, January 25, 1959, at the intersection of Hurtel Street, a public street in Mobile, Alabama, and the main line tracks of the Louisville & Nashville Railroad Company. The automobile was traveling west on Hurtel Street, and the train was proceeding southwestwardly to cross Hurtel Street at an angle of about 45 degrees. The automobile came near to clearing the crossing, the point of impact being approximately at its right rear wheel.

The district court granted the defendant's motion that the plaintiffs were not entitled to recover on their charge of willful or wanton misconduct, and no review of that ruling is requested. The cases were submitted to the jury on issues of the defendant's simple initial negligence and subsequent negligence. In the cases of the driver, Rosalie Byrd, and her husband Ollie Byrd, Sr., the issue of contributory negligence as a defense to simple negligence was also submitted. The court, ex mero motu, charged that as a matter of law Ollie Byrd, Jr., was not himself guilty of contributory negligence and was not responsible for any negligence on the part of his mother, the driver of the automobile. As to all three plaintiffs the court declined to submit the issue of subsequent contributory negligence.

The appellant does not make a very strong insistence that there was no sufficient evidence of any simple initial negligence, but comes near conceding that jury questions were presented on the issues of blowing the whistle or ringing the bell as required by State statute¹ and of exceeding the speed limit prescribed by city ordinance,² its brief stating:

"On these points there was conflicting evidence. If you construe the testimony most favorably to the plaintiffs, it could be argued that there is support for a jury to find that the whistle was not blown. As to the bell, the problem is more difficult, all the testimony contra being of a negative nature only. Since Mr. Hall testified that in his opinion the train was going fifty (50) miles an hour, though he stated he had never had an occasion to observe and gauge speeds of trains prior to this occurrence, it could be argued by plaintiffs that the jury was entitled to find that the train was exceeding the thirty (30) mile an hour rate testified to by the engineer and fireman."

On the matter of the sufficiency of signs warning motorists to stop, the appellant strongly insists that as a matter of law it was not negligent, and it even more strongly insists that the driver's failure to stop, look and listen constitutes contributory negligence barring any recovery for simple negligence. Title 48, Sec. 172 of the 1940 Code of Alabama provides that:

"Every railroad company must erect, at all points where its road crosses any public road, at a sufficient elevation to admit of the free passage of vehicles of every kind, a sign, with large and distinct letters placed thereon, to give notice of the proximity of the railroad and warn persons of the necessity of looking out for the cars."

In Sloss-Sheffield Steel & Iron Co. v. Peinhardt, 1940, 240 Ala. 207, 199 So. 33, 37, the Alabama Supreme Court stated:

"Said section has no application here in that the evidence clearly showed that the alleged accident and collision took place within the corporate limits of the City of Birmingham. Appel v. Selma St. & S. R. Co., 177 Ala. 457, 59 So. 164."

The appellee insists that statement was dictum. We need not stop to inquire, for a like statement in the case just preceding, Sloss-Sheffield Steel & Iron Co. v. Willingham, 1940, 240 Ala. 294, 199 So. 28, 32, is clearly the sole point on which that case was decided. See Sloss-Sheffield Steel & Iron Co. v. Littrell, 1944, 246 Ala. 58, 18 So.2d 709, 712.

The appellant had actually erected cross-buck signs on each side of its tracks at this crossing, and appellee argues that thereby it assumed a duty and that liability may be predicated on its failure to maintain the sign on the side from which the automobile approached so as to constitute adequate warning of the crossing.³ There was no evidence, however, that Mrs. Byrd knew of or relied on the presence of the cross-buck sign. In fact she took the contrary position. All of the Alabama cases cited by the appellee to the point of an assumed duty⁴ involve knowledge and reliance on the part of the driver, which seem to us essential prerequisites to liability on that theory.

The general duty of a railroad company to warn of a crossing is stated in Southern Ry. Co. v. Lambert, 1935, 230 Ala. 162, 160 So. 262, 263:

"This court, in line with the great weight of authority, has declared the rule that, in the absence of statute, or special conditions of hazard to motorists, there is no duty on the railway company to provide special warning or safeguards to motorists, either in the day or nighttime, to prevent collisions with cars standing on such crossing. The law requires motorcars to be equipped with adequate headlights, and that they be not run at such speed that an obstruction, such as a freight car, cannot be discovered in time to come to a stop. Others are not required to take precautions against one\'s negligence. Otherwise stated, one may assume that another will take ordinary care."

While in that case cars stopped on the crossing were held to constitute adequate warning, the principle is that any reasonably adequate warning of the crossing will suffice.

There is an exception to this general rule when some peculiar environment, some special condition of hazard to motorists may give rise to a duty of the railroad company to provide special warnings. Callaway v. Adams, 1949, 252 Ala. 136, 40 So.2d 73. Under all of the facts and circumstances of the present case, however, the warnings actually present we hold to be adequate as a matter of law. Compare Watson v. Birmingham Southern R. Co., 1953, 259 Ala. 364, 66 So.2d 903. Facing the approach of the automobile was an Alabama stop-law sign clearly visible within the range of the headlights, in addition to the railroad cross-buck sign. There was a lighted street lamp at the crossing. The weather was clear and the road was dry. The automobile had not only to pass the two signs, but also to cross two sets of tracks before getting to the main line on which the train was approaching. Approaching from the direction of the Byrd vehicle about 25 or 30 feet from the track, the street makes a slight incline to the grade level of the track. The evidence, along with a careful inspection of the very clear photographs, leaves us of the clear view that the cautionary warnings were adequate.

The automobile did not change speed, but continued on at the same rate it was traveling, between 25 and 30 mph, until the moment of collision.

Mrs. Byrd had been over the crossing before and knew that there was a crossing somewhere in the vicinity, but did not know its exact location. Ollie Byrd, Jr., testified to at least that much, and probably a little more, knowledge of the crossing.

Mrs. Byrd apparently suffered from traumatic amnesia and did not remember anything about the collision. Ollie Byrd, Jr., testified that he had his head down, taking a rock out of his shoe, as they approached the crossing, and that the first he knew of the impending collision was when he looked up and saw a light out of the right-hand glass.

The railroad tracks were embedded in the pavement and were not by themselves sufficient warning to a stranger of the presence of the crossing. Sloss-Sheffield Steel & Iron Co. v. Willingham, 1942, 243 Ala. 352, 10 So.2d 19. There is an exception to the stop, look and listen rule in Alabama when the driver has no knowledge of the existence of the crossing and it is not protected by adequate warnings. Sloss-Sheffield Steel & Iron Co. v. Willingham, supra; Callaway v. Adams, supra. Here, Mrs. Byrd was not a complete stranger to the crossing, and, as we have held, the warnings of its existence were adequate as a matter of law. Clearly, Mrs. Byrd's failure to stop, look and listen before driving upon the track constitutes contributory negligence as...