Georgia Pac. Ry. Co. v. Hughes

• Decision Date: 21 June 1889
• Citation: 87 Ala. 610,6 So. 413
• Parties: GEORGE PAC. RY. CO. v. HUGHES.
• Court: Alabama Supreme Court

6 So. 413

87 Ala. 610

GEORGE PAC. RY. CO. v. HUGHES.

Supreme Court of Alabama

June 21, 1889

Appeal from circuit court, Jefferson county; LEROY F. BOX, Judge.

Action by Thomas R. Hughes against the Georgia Pacific Railway Company, to recover damages for injury inflicted on the plaintiff by the alleged negligence of the defendant railroad company. After the introduction of the evidence, the court of its motion, charged the jury as follows: "Now, under our law, gentlemen, when a person brings a suit against a railroad corporation for damages for injury to his person, as in this case, he is required to show that he has been injured, and that the injury was inflicted by the defendant or the defendant's employés or servants, and when he does that the law says that then the burden of proof is upon the defendant to show that itself or its employés were not negligent at the time and place of the occurrence, and that therefore, if the plaintiff was injured at all, he was not injured by reason of defendant's negligence. Verdict for plaintiff, and defendant appeals.

James Weatherly, for appellant.

Smith & Lowe and Mason & Martin, for appellee.

STONE C.J.

The East lake dummy line of railway extends from the business part of the city of Birmingham eastwardly to East lake. It is a street railway, the cars of which are drawn by steam-power, called a "dummy engine." Within the corporate limits of Birmingham, at the intersection of First avenue and Twenty-Seventh street, the East lake railway track crosses two lateral tracks of the Georgia Pacific Railway Company that were used in receiving and transferring cars from and to other railroads that center in Birmingham. The railroad crossings are in a public street, or at the point of intersection of the two streets. At this crossing the injury was suffered which gave rise to the present suit. The injury was inflicted in March, 1888. The plaintiff, Hughes, was a passenger on the dummy line going eastward. While crossing the Georgia Pacific's said tracks a collision occurred between the coach in which he was riding and the front car of a train which the Georgia Pacific was pushing along its transfer track, with a view of placing said cars, some 10 in number, beyond the crossing. The engine of the Georgia Pacific which was moving these cars was at the other end of the train, about 10 car-lengths distant-say 300 feet-from the crossing. Plaintiff, as the proof tends to show, was seriously hurt and injured, and it is not claimed that he was himself guilty of any negligence.

The testimony as to the cause, or proximate cause, of the collision is in very marked conflict. The one line of proof, if true as presented, relieves the dummy line of all omissions of duty,-of all negligence,-and places the fault on the Georgia Pacific. The other places the culpability on the dummy line. Neither the court below nor this court was or is charged with the ascertainment of the facts. That was exclusively the province of the jury, under proper instructions as to the law to be given to them by the court. We review the circuit court's rulings on the law, and nothing else.

A few questions were reserved on the admissibility of the evidence. They were not pressed in the argument, and we think there is nothing in them. 3 Brick. Dig. 467.

The defense takes two positions: First, that, conceding the Georgia Pacific was guilty of negligence, the dummy line was also guilty of negligence which contributed proximately to the collision, and plaintiff, being a passenger on the dummy line, is under the same disability to sue and recover as the dummy line would be if it were suing. There are some authorities which support this view, but we think them unsound. If each of the corporations was guilty of negligence which caused, or aided in causing, the injury, certainly it is strange logic to contend that because each had an agency in committing the tort neither is liable to the person injured by such compound tort. Railway v. Sistrunk, 85 Ala. 352, 5 South. Rep. 79; 2 Wood, Ry. Law, 1340 et seq.; Chapman v. Railroad Co., 19 N.Y. 341; Robinson v. Railroad Co., 66 N.Y. 11; Shear. & R. Neg. § 46; Whart. Neg. § 395; Railway Co. v. Shacklet, 12 Amer. & Eng. R. Cas. 166; Patt. Ry. Accident Law, § 357. It may create a joint and several liability. It does not exonerate either.

The other defense relied on is that the entire fault was that of the dummy line. If that be true, there should be no recovery against the Georgia Pacific. The only form in which this question comes before us is in the charges given and refused; notably the charges relating to the burden of proof. The act "to define the duties and liabilities of railroad companies in this state," was approved February 6, 1858. Sess. Acts 1857-58, p. 15. The third section of that act was amended January 31, 1861. Sess. Acts, p. 37. As amended, the first and third sections were carried into the Code of 1867 as sections 1399, 1401. They were then carried, without change, into the Code of 1876 as sections 1699 and 1700. These sections remained without change until February 28, 1887, when section 1700 was amended. Sess. Acts, pp. 146, 147. Section 1699 of the Code of 1876 was carried without any alteration which affects this case into the Code of 1886 as section 1144. The act of February 28, 1887, which amended section 1700 of the Code of 1876, was not repealed or affected in any manner by the adoption of the Code of 1886. Such is the express language of the second section of the act "to adopt a code of laws for the state of Alabama," approved February 28, 1887. Sess. Acts, p. 47. It results that the statutory law which governs this case is found in sections 1144 and 1145 of the Code of 1886, and in "the act to amend section 1700 of the Code," approved February 28, 1887. Sess. Acts, p. 146. Section 1144, Code of 1886, specifies many duties which "the engineer or other person having control of the running of a locomotive on any railroad" must observed and perform. We will only mention those which seem to be applicable to this case: "He must also blow the whistle or ring the bell at short intervals, on entering into, or while moving within, or passing through, any village, town, or city. He must also, on perceiving any obstruction on the track, use all the means within his power known to skillful engineers, such as applying brakes and reversing engine, in order to stop the train." Section 1145: "When the tracks of two railroads cross each other, engineers and conductors must cause the trains of which they are in charge to come to a full stop within one hundred feet of such crossing, and not proceed until they know the way to be clear; the train on the railroad having the older right of way being entitled to cross first."

Before the amendment of section 1700 by the act of February 28, 1887, when suit was brought against railroad companies for destruction or injury or stock or other property by their locomotives or cars, the burden of proof was declared to be on the railroad company to show that the requirements of section 1699 of that Code were complied with at the time and place when and where the injury was done. There was no such declaration or provision applicable to suits in which injury to the person was the ground of complaint. The requirements of section 1699, here referred to, are found in section 1144 of the Code of 1886, from which we have given extracts above. The amendment of section 1700 extended its provisions so as to include cases in which a person was killed or injured; and as the statute stood when the plaintiff in this case was injured, and is still of force, the rule as to the burden of proof was and is still the same, whether the injury complained of is to person or property. The amended section is in the following language. "A railroad company is liable for all damages done to persons, stock, or other property, resulting from a failure to comply with the requirements of the preceding section, or any negligence on the part of such company or its agents; and when any person or stock is killed or injured, or other property damaged or destroyed, by the locomotive or cars of any railroad, the burden of proof in any suit brought therefor is on the railroad company to show that the requirements of the preceding section (section 1699 of the Code of 1876) were complied with at the time and place when and where the injury was done."

Railroads are common carriers for hire, and as such, when they transport property, and it is injured in transit, or is not delivered, the burden is on the carrier to show that it bestowed all proper diligence on the service, and that the property was injured or destroyed without any negligence on its part. Steele v. Townsend, 37 Ala. 247; Leach v. Bush, 57 Ala. 145; Grey v. Trade Co., 55 Ala. 387. When the injury is to a person or to property not being transported, then the statutes referred to above become important factors. We have had many cases before us which were more or less influenced by these statutes. Whenever an injury has been done to property under circumstances which call for the exercise of any of the cautionary signals or acts required by section 1144, Code 1886, we have held that the burden is on the railroad company to prove that it complied with the requirements of that section. We have held however, that a failure to comply, or, what is the same thing, to make proof that it did comply, while it creates a prima facie intendment that the railroad was in fault, is not conclusive of the plaintiff's right of recovery. It is only in cases where the injury complained of is reasonably traceable to the failure to comply with the requirements of the statute that the...