80 So.2d 288 (Ala. 1955), 6 Div. 768, Louisville & N.R. Co. v. Tucker

Docket Nº6 Div. 768.
Citation80 So.2d 288, 262 Ala. 570
Opinion JudgeSTAKELY, Justice.
Party NameLOUISVILLE AND NASHVILLE RAILROAD CO. v. C. E. TUCKER.
AttorneyGibson & Gibson, Birmingham, for appellant., Hare, Wynn & Newell and Frank L. Parsons, Birmingham, for appellee.
Case DateMarch 10, 1955
CourtSupreme Court of Alabama

Page 288

80 So.2d 288 (Ala. 1955)

262 Ala. 570

LOUISVILLE AND NASHVILLE RAILROAD CO.

v.

C. E. TUCKER.

6 Div. 768.

Supreme Court of Alabama.

March 10, 1955

Rehearing Denied May 19, 1955.

Page 289

[262 Ala. 571] Gibson & Gibson, Birmingham, for appellant.

[262 Ala. 572] Hare, Wynn & Newell and Frank L. Parsons, Birmingham, for appellee.

STAKELY, Justice.

C. E. Tucker (appellee) instituted this suit against the Louisville and Nashville Railroad Company, a corporation, and J. W. Jones. The case was submitted to the jury on two counts. Count 1 alleges in substances that on to wit March 10, 1953, defendants were in charge or control of a railway locomotive and train at a point where the railroad tracks cross 8th Avenue, [262 Ala. 573] a public highway in Cullman, Alabama, when the locomotive collided with a vehicle which plaintiff was driving on said public

Page 290

highway and as a proximate consequence of said collision plaintiff sustained severe and permanent injuries. The count alleges that the alleged injuries were the proximate consequence of the negligence of the defendants in causing or allowing said locomotive to collide with said automobile.

Count 2 was identical with count 1 except that it alleged that a servant or agent of the defendant acting within the line and scope of his authority as such wantonly injured plaintiff wantonly causing said collision thus proximately causing the injuries and damage. Count 2 further alleged that the defendants wantonly injured plaintiff on the date and at the place alleged by wantonly causing or wantonly allowing the locomotive to collide with the vehicle which plaintiff was operating so that as a proximate consequence plaintiff suffered the alleged injuries.

The defendants pleaded in short by consent the general issue with leave to give in evidence any matter which if well pleaded would be admissible in evidence with similar leave to the plaintiff to make like reply.

The jury returned a verdict against the defendant Louisville and Nashville Railroad Company in the sum of $50,000. There was a motion for a new trial which the court overruled and hence this appeal.

Testimony for the plaintiff tended to show that a pick-up truck of which the plaintiff was the driver was in collision with a passenger train of the railroad company on March 10, 1953. It was daylight and the weather was clear. The collision occurred within the city limits of Cullman, Alabama, at the point at which 8th Avenue, a paved street, which running slightly south and northwest, crosses the tracks of the railroad company, which run north and south diagonally at grade. There are five tracks in all designated, respectively, from east to west as follows: (1) the east hill track, (2) the north-bound main, (3) the passing track, (4) the south-bound main and (5) the storage track. 8th Avenue is about 40 feet wide where it crosses the tracks and is generally level over the entire crossing but rises slightly just east of the easternmost rail of the hill track. The width of each track from rail to rail is 4 feet 8 inches. The distance from the easternmost rail of the hill track to the corresponding rail of the next or north-bound main is 26 feet, 7 inches. The remaining tracks are spaced so that the west rail of each is approximately 10 feet from the east rail of the next. The total distance from the east rail of the 'hill track' to the point of collision was approximately 54 feet. An Alabama Stop Sign was situated about 19 feet east of the east rail of the 'hill track' on the southerly side of 8th Avenue. A white cross-buck sign was situated near the west rail of the 'storage track' on the southerly side of 8th Avenue. There were no buildings or other natural obstructions to obscure the view from a point east of the rail of the hill track, northward along the railroad tracks, which were straight for more than 600 feet north of the crossing. Approximately 1,500 feet south of the 8th Avenue crossing was the Cullman Railroad Station at which a north-bound train was standing on the 'north-bound main track.' About 700 feet south of the crossing a switch engine was engaged in placing cars on the 'hill track.' A stationary cut or string of four or five cars was on the 'passing track' north of the 8th Avenue crossing. According to the tendencies of the evidence, the southernmost of these standing cars was about 100 feet north of the crossing.

An unpaved street, called Main Street, was east of the tracks. This street ran northeasterly roughly parallel with the tracks north of the crossing to and beyond a Standard Oil Company plant and entered 8th Avenue from a northerly direction at a point about 12 or 15 feet east of the east rail of the 'hill track.' The plaintiff had been up Main Street to the Standard Oil Plant and had secured a drum of gasoline in his pick-up truck. He had then proceeded southwesterly along Main Street to or near the point at which the latter ran into 8th Avenue, where he stopped. The [262 Ala. 574] truck was then facing generally in a southwesterly direction. The truck was next

Page 291

seen by plaintiff's witness Duke, who was at a warehouse just east of the railroad tracks and about a block and a half south of the crossing. It was then moving westerly across the series of tracks at about 10 or 15 miles per hour, according to Duke, and was on track 2, the north-bound main track.

The train, consisting of a steam locomotive and five passenger cars, approached the crossing from the north on track 4, 'the south-bound main track.' Tendencies of the evidence show that its speed was 40 to 45 miles per hour. Duke saw the train some considerable distance north of the crossing but testified that it then disappeared from his view behind the standing cars on track 3, which he said extended to a point about 100 feet north of the crossing. Duke next saw the train when it cleared these cars and he testified that he did not hear any bell or whistle sounded until this time, when one whistle signal was heard by him. He heard the noise of the train before he heard the whistle. Plaintiff's truck continued westerly across the series of tracks until the left front side of the engine and the right front side of the truck made contact. The train was about 100 feet north of the crossing when Duke first saw plaintiff's truck. The truck was turned around once and after the collision was again headed west with one side of the truck on the edge of the crossing. It was not turned over. Plaintiff was lying unconscious on the street between tracks 2 and 3. The trains stopped about even with where the witness Duke was which he testified was a block or a block and a half south of the crossing. The crossing was open, level and readily visible.

The only other witness for the plaintiff who saw the truck in the vicinity prior to the collision was Isaac Rainey. He testified that as he left Reeves' store on 8th Avenue and drove north on Main Street, plaintiff's vehicle was on Main Street at the place at which it joined 8th Avenue, standing still with the rear end of it pointed northwardly toward the Standard Oil Plant. The witness passed by the truck and drove northwardly to his place of work about a block or a block and a half which he estimated took him about 3 1/3 minutes and then saw the train come by his place of business, The Cullman Ready-Mixed Concrete Company. As the back end was passing, Rainey heard the sound of the air-brakes going on. Rainey testified that he did not hear a train whistle or bell, but he would not testify that the whistle did not blow. He said 'it might have blown.' He stated that the northernmost of the standing cars on track 3 was about even with the Ready-Mixed Warehouse. He had seen the switch engine which was on track 1 south of the crossing moving southwardly when he was in the neighborhood of the crossing.

The plaintiff, C. E. Tucker, testifying in his own behalf, stated that he did not remember the collision nor anything for a period of 15 to 30 minutes before the collision. He could not say whether or not the train blew nor whether or not he stopped.

A Cullman city ordinance fixed a speed limit of 20 miles per hour on trains crossing any public crossing in the city limits. The limits of the city had been extended prior to 1948 but no signs along the railroad tracks indicated the limits of the city.

There was testimony with reference to the injuries and condition of the plaintiff after the accident. We shall refer to this testimony later in the opinion.

Charlie Harris, a witness for the defendant who was the fireman on the engine which was in the collision, testified that he had had 31 years experience as a fireman and was at his post on the left side of the engine as...

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36 practice notes
  • 403 So.2d 918 (Ala. 1981), 79-791, Ex parte Rollins
    • United States
    • Alabama Supreme Court of Alabama
    • August 21, 1981
    ...with great caution. Airheart v. Green, id.; McLaney v. Turner, 267 Ala. 588, 104 So.2d 315; Louisville & Nashville Ry. Co. v. Tucker, 262 Ala. 570, 80 So.2d 288, 298. Where, as here, there is no set standard for the admeasurement of damages but the damages to be awarded are left to the ......
  • 104 So.2d 315 (Ala. 1958), 4 Div. 889, McLaney v. Turner
    • United States
    • Alabama Supreme Court of Alabama
    • June 19, 1958
    ...the Page 322 evidence and may draw conclusions from the evidence based on his own reasoning. Louisville & Nashville R. Co. v. Tucker, 262 Ala. 570, 80 So.2d 288; Cahaba Southern Mining Co. v. Pratt, 146 Ala. 245, 40 So. 943. We have frequently said that in the matter of argument much 'm......
  • 238 So.2d 330 (Ala. 1970), 6 Div. 617, Freeman v. Hall
    • United States
    • Alabama Supreme Court of Alabama
    • February 26, 1970
    ...of that discretion in a case where closing argument of counsel is not in the record. Louisville & Nashville Railroad Co. v. Tucker, 262 Ala. 570, 80 So.2d 288; Adams v. Queen Insurance Co. of America, 264 Ala. 572, 88 So.2d 331; Hinton & Sons v. Strahan, 266 Ala. 307, 96 So.2d 426; ......
  • 405 So.2d 134 (Ala. 1981), 79-587, Aspinwall v. Gowens
    • United States
    • Alabama Supreme Court of Alabama
    • May 1, 1981
    ...with great caution. Airheart v. Green, id.; McLaney v. Turner, 267 Ala. 588, 104 So.2d 315; Louisville & Nashville Ry. Co. v. Tucker, 262 Ala. 570, 80 So.2d 288, 298. Where, Page 137 as here, there is no set standard for the admeasurement of damages but the damages to be awarded are lef......
  • Request a trial to view additional results
36 cases
  • 403 So.2d 918 (Ala. 1981), 79-791, Ex parte Rollins
    • United States
    • Alabama Supreme Court of Alabama
    • August 21, 1981
    ...with great caution. Airheart v. Green, id.; McLaney v. Turner, 267 Ala. 588, 104 So.2d 315; Louisville & Nashville Ry. Co. v. Tucker, 262 Ala. 570, 80 So.2d 288, 298. Where, as here, there is no set standard for the admeasurement of damages but the damages to be awarded are left to the ......
  • 104 So.2d 315 (Ala. 1958), 4 Div. 889, McLaney v. Turner
    • United States
    • Alabama Supreme Court of Alabama
    • June 19, 1958
    ...the Page 322 evidence and may draw conclusions from the evidence based on his own reasoning. Louisville & Nashville R. Co. v. Tucker, 262 Ala. 570, 80 So.2d 288; Cahaba Southern Mining Co. v. Pratt, 146 Ala. 245, 40 So. 943. We have frequently said that in the matter of argument much 'm......
  • 238 So.2d 330 (Ala. 1970), 6 Div. 617, Freeman v. Hall
    • United States
    • Alabama Supreme Court of Alabama
    • February 26, 1970
    ...of that discretion in a case where closing argument of counsel is not in the record. Louisville & Nashville Railroad Co. v. Tucker, 262 Ala. 570, 80 So.2d 288; Adams v. Queen Insurance Co. of America, 264 Ala. 572, 88 So.2d 331; Hinton & Sons v. Strahan, 266 Ala. 307, 96 So.2d 426; ......
  • 405 So.2d 134 (Ala. 1981), 79-587, Aspinwall v. Gowens
    • United States
    • Alabama Supreme Court of Alabama
    • May 1, 1981
    ...with great caution. Airheart v. Green, id.; McLaney v. Turner, 267 Ala. 588, 104 So.2d 315; Louisville & Nashville Ry. Co. v. Tucker, 262 Ala. 570, 80 So.2d 288, 298. Where, Page 137 as here, there is no set standard for the admeasurement of damages but the damages to be awarded are lef......
  • Request a trial to view additional results