Louisville & N.R. Co. v. Simmons

• Decision Date: 26 February 1948
• Docket Number: 6 Div. 653.
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. SIMMONS.

36 So.2d 460

251 Ala. 131

LOUISVILLE & N. R. CO. v. SIMMONS.

6 Div. 653.

Supreme Court of Alabama

February 26, 1948

Rehearing Denied July 31, 1948.

Chas. H. Eyster, of Decatur, and Gibson &amp Gibson, of Birmingham, for appellant.

Taylor, Higgins, Koening & Windham, of Birmingham, for appellee.

BROWN Justice.

This is an action of trespass on the case instituted by appellee against appellant, the Louisville & Nashville Railroad Company, a corporation, G. W. Morgan, W. L. Wood, Steve Barrett, Jasper Jackson, Pat Barnett, John Doe and Richard Rowe, the complaint averring that the last two parties were unknown to plaintiff, to recover damages for personal injuries alleged to have been inflicted upon plaintiff 'as a proximate result of the negligence of the defendants.'

The evidence shows that G. W. Morgan was the engineer in charge of and operating appellant's locomotive pulling a freight train over defendant's Cane Creek Branch between Powhatan and Boyles, which passed through Crocker's Junction and over Divide Crossing on the occasion of plaintiff's alleged injury. Andrew B. Luster (not a party defendant) was the fireman.

The complaint was amended on the first day of the trial by withdrawing all counts of the complaint except count 1, and striking all parties defendant except the corporate defendant and the engineer Morgan. On the third day of the trial plaintiff again amended his complaint by adding count A. The case was submitted to the jury on count 1 as to both defendants and on count A as to the railroad company. The court gave the affirmative charge requested by the defendant Morgan in writing as to count A. The trial resulted in a verdict and judgment against the railroad company for $20,000, but acquitting the engineer of liability. From that judgment the railroad company prosecutes this appeal.

The evidence is without dispute that the tracks of the appellant the Louisville & Nashville Railroad Company, pass over what is known as 'Divide Crossing' and for the purpose of the trial in this case the defendant railroad company conceded that Divide Crossing was a public road crossing. The road itself is a dirt road in a sparsely inhabited community with two travel tracks or ruts made by vehicles, with grass growing between. There were no crossing signs at the crossing and the travel over this road was infrequent. The plaintiff lived with his father as a member of the family near the crossing and was familiar with the crossing and the road and traveled it frequently. The defendant maintained a section crew for keeping up its Cane Creek Line on which the crossing is situated near the top of the ridge and which was subject to erosion from rainfall. A heavy rain fell at this crossing on the night after plaintiff received his alleged injuries. The section crew repaired the tracks on this crossing a week prior to the accident by filling in the road crossing with cinders and had inspected this crossing daily. Said alleged wire cable was not placed in said roadbed between the tracks by the section men and they had no knowledge of its existence until after the alleged injuries. In fact, so far as appears from the evidence, no one had ever discovered the imbedded cable in between the rails until the day after the alleged injury.

The crossing is located on a two percent curve which is approached as the road leads from Divide Switch on a three percent curve. As the locomotive entered upon the curve on which this crossing is located, the engineer could not see one-fourth of a mile ahead. The locomotive which allegedly caused plaintiff's injuries approached Divide Crossing going east passing through Divide Station pulling a train of twenty-two cars all loaded except two and until it reached within three or four hundred feet of the crossing, it was pulling upgrade working steam. After the tracks pass the switch next to the crossing the grade is downhill and both the engineer and the fireman were keeping a general lookout ahead during the last four hundred feet before the engine reached the crossing. The fireman was at his post on the left or north side of the cab and when the head of the engine came within 400 feet of the crossing he had a full view of the crossing until the engine was within about 100 feet thereof when the crossing passed out of his view. The crossing came within the engineer's view when the front of the locomotive was within 115 to 120 feet thereof. The train was moving from 20 to 22 miles per hour. It required a space of three seconds for the brakes applied in emergency to take effect and the train which was covering 30 feet per second could not be stopped within less than 250 to 300 feet. The plaintiff testified at the time he stepped over the south rail the train was only 75 yards or 225 feet from the crossing, and the evidence shows that but for the fact that his trouser cuff was caught by the wire he had ample time to clear the track before the train reached the crossing. The brakes were not applied, as the engineer and fireman testified, for the reason that there was no one at or near the crossing as the locomotive reached and passed over the same.

The evidence was in dispute as to whether or not the crossing signals were given. Some of plaintiff's witnesses testified that they could hear the train pulling the grade before it reached Divide Crossing, a quarter of a mile away.

The plaintiff testified as a witness in his own behalf.

'Now, as you go west, that is, in the direction the train came from, I will ask you whether or not the track is straight or whether or not it is curved? A. As I go west from the crossing?

'Q. Yes, sir. A. Well, it is curved slightly.

'Q. All right. I want to show you a picture. Is that a picture, or does that truly represent the curve in the track west of the crossing? A. Let's see now. That is west?

'Q. That would be west. There is your embankment.

'Mr. Eyster: What picture is that, please?

'Mr. Perdue: Exhibit four.

'A. Yes, sir, it does.

'Q. Is that the way it looks from the crossing, the curve of the track? A. Yes, sir.

'Q. And that is looking west, the direction from which the train came? A. Yes, sir.

'Q. You say you can see up there about a hundred yards, I believe? A. Yes, sir.

'Mr. Eyster: Did he say you could see a hundred yards up there?

'Mr. Perdue: That is what I understood him to say.

'A. Or a little better. I said that is where the switch is.

* * *

* * *

'Q. When you got there in close proximity to the crossing or got close to the crossing, what did you do, if anything? A. Well, I hesitated a moment and looked both ways and then I started on across, looked and listened.

'Q. You hesitated a moment and looked and listened both ways? A. That is right.

'Q. At that time were there any train in sight? A. No, sir, there wasn't.

'Q. Then what did you do? A. I started on across and my right overall leg hung on something and I tried to move on across and glanced and saw this train coming from the west direction.

'Q. Now, did you see the object that caught your overall pants or was this object covered by your overall pants? A. It was covered. I didn't see it.

'Q. When you first caught your overall in this object there where was that object in reference to the track, was it south of the track or between the track? A. It was kind of between the track.

'Q. Which side of the road were you walking on? A. Well, kind of on the left side.

'Q. Kind of on the left side? A. Yes, sir.

'Q. Well, do you know where the rut would be on that portion of the road, where the wheels of a car would ordinarily travel? A. Yes, sir.

'Q. Were you walking in one of the ruts of the road? A. Yes, sir, a little bit to the right of the left rut, it seems like.

'Q. When you became caught there in the object, what was the first movement you made, in which direction, if you can remember? A. I tried to go on across.

'Q. You tried to go on across? A. Yes, sir.

'Q. Did you trip? A. Yes, sir, I kind of tripped, and I was frightened when I saw that train. I tried to run east then.

'Q. That would be in the direction the train was going? A. Yes, sir, the same direction the train was traveling.

'Q. When you tried to go east would your back be to the train at that time? A. Yes, sir, that is right.

'Q. When you tried to go east there, were you able to get aloose? A. No, sir.

'Q. When you first saw the train after you were caught on the track, can you give us any judgment how far the train was from you when you first were caught? 'A. It was approximately seventy-five yards away.

'Q. Approximately seventy-five yards away? * * *'

On cross-examination the plaintiff testified:

'Q. And when you got close to the railroad track you say you looked and listened--looked in both directions for a train? A. Yes, sir.

'Q. But you did not stop? A. Yes, sir, I did hesitate just a minute, just a second or two.

'Q. Did you stop completely you think? A. Yes, sir.

'Q. How close were you in your best judgment to the south rail of that track when you claim that you hesitated? A. Some where in four or three feet.

'Q. Three or four feet? A. Of the south rail.'

The plaintiff offered in evidence six photographs of views of the railroad and road crossing from all directions--east, west north and south--and the surface of the crossing, made from a week to ten days after plaintiff's alleged injury, disclosing in the surface of the crossing the end of the wire cable also introduced in evidence together with a piece of cloth in between two of the wires of the cable, said wires being 1/16th of an inch in diameter. These exhibits are attached to the record in this case and are before the court. The evidence is without dispute that the wire cable (plaintiff's Exhibit 7) was not placed in...