Louisville & N.R. Co. v. Bailey

• Citation: 16 So.2d 167,245 Ala. 178
• Decision Date: 07 October 1943
• Docket Number: 6 Div. 103.
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. et al. v. BAILEY.

16 So.2d 167

245 Ala. 178

LOUISVILLE & N. R. CO. et al. v. BAILEY.

6 Div. 103.

Supreme Court of Alabama

October 7, 1943

Rehearing Denied Dec. 2, 1943.

Further Rehearing Denied Jan. 13, 1944.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

In the oral charge the trial court instructed the jury:

"Now there is a statute here. Perhaps at this juncture I might call your attention to it. That is the Code,-the 1940 Code the new Code, Title 48, Section 170, and it reads as follows:

"'The duty of the engineer to ring the bell or blow the whistle: The engineer or other person having control of the running of a locomotive on any railway must blow the whistle or ring the bell at least one-fourth of a mile before reaching any public road crossing * * * and continue to blow the whistle and ring the bell at short intervals until he has passed such crossing.' Now, then, another thing it says, 'And also * * * immediately before entering any curve crossed by a public road crossing where he'-that is, the engineer operating the engine-'cannot see at least one fourth of a mile ahead', he must likewise immediately before entering the curve crossed by a public road where he cannot see at least one-fourth of a mile ahead, blow his whistle or ring the bell and continue at short intervals thereafter to either blow the whistle or ring the bell until he has passed the public road crossing, and then it goes on to say. * * *"

The charge proceeds with the following instructions to which the defendants reserved exceptions:

"And it provides he must approach the crossing under such speed as to be able to take care of the situation in the event something looms up on the track at the crossing in the exercise of due care. Let me see if I can get the language of it. 'And also immediately before entering a curve crossed by a public road crossing, approach and pass such crossing at such speed as to prevent accident in the event of any obstruction at the crossing.' * * * Then, another proposition out of this section I have just read to you,-that curve we have been talking about, could the engineer see at least a quarter of a mile or not? If he could not then it was his duty under that law I have just read to you immediately before entering that curve where the engineer couldn't see at least one-quarter of a mile ahead, immediately before entering the curve to ring the bell or blow the whistle and intermittently thereafter at short intervals to ring the bell or blow the whistle until he shall have passed the road crossing. * * *

"Now, to recapitulate, without trying to read the statute here, there is a statutory duty laid down upon the man who runs the engine * * * and if it is on a curve where the engineer can't see one-quarter of a mile, that same statute provides he must ring the bell or blow the whistle and continue to ring the bell or blow the whistle until he has passed over the crossing. You have that in your head. * * * And, in the instance of a curve. * * * Those are statutory requirements, and it is up to the railroad company to exculpate itself or reasonably satisfy your minds, in other words, of a compliance with those statutory requirements."

The following charges were refused to defendants:

13. "I charge you gentlemen of the jury if you are reasonably satisfied from the evidence that the negligence complained of is so slight or so characterized by mitigating circumstances as that the jury would be justified in the imposition of such punishment only as is involved in the assessment of merely nominal damages, you may impose such damages, if you are reasonably satisfied from the evidence that the plaintiff is entitled to a verdict."

14. "In your sound discretion, if you are reasonably satisfied from the evidence that plaintiff is entitled to recover, you may impose merely nominal damages, if you are reasonably satisfied from the evidence that the death of Devoda Bailey was caused by negligence so slight or so characterized by mitigating circumstances as that the jury would be justified in the imposition of such punishment only as is involved in the assessment of merely nominal damages."

26. "I charge you, gentlemen of the jury, if you are reasonably satisfied from the evidence that there was nothing in the behavior or conduct or acts of Devoda Bailey giving any indication of inattention or of unconsciousness of his surroundings or lack of knowledge of the approaching train, that then the engineer could assume that the said Devoda Bailey would do his duty and stop his truck before going upon the railroad track, and not attempt to cross said railroad track in dangerous proximity to the approach of the train, provided you are further reasonably satisfied from the evidence that the speed of the approaching automobile and its distance to travel before reaching the track was such as to indicate to the engineer that it had time and distance by the proper use and means at hand to be brought to a stop before going upon the railroad track."

28. "If you are reasonably satisfied from the evidence that Devoda Bailey heard and knew of the approaching train, and that he saw the approaching train, and after seeing the same, if you are reasonably satisfied from the evidence that he could have stopped his truck before going upon the track, and that at the time he saw the train, it was in dangerous proximity to the crossing, then I charge you gentlemen of the jury that there was a breach of duty upon the part of Devoda Bailey, and that the said Devoda Bailey was guilty of subsequent negligence."

31. "I charge you gentlemen of the jury, that under those counts of the complaint which authorize plaintiff to proceed on a charge of subsequent negligence, that the material question to be considered and determined by you under said counts is not when the engineer discovered the truck, but when the engineer discovered the peril of Devoda Bailey."

GARDNER, C. J., and BROWN and FOSTER, JJ., dissenting on rehearing.

Chas. H. Eyster, of Decatur, and White E. Gibson, of Birmingham, for appellants.

Taylor, Higgins & Windham and J. Howard Perdue, Jr., all of Birmingham, for appellee.

THOMAS Justice.

The suit was under the homicide statute. Code 1940, Tit. 7, § 119.

The facts are stated in short that on November 18, 1941, Devoda Bailey, the eighteen year old son of plaintiff, was killed at Springdale Road Crossing in Jefferson County, Alabama, by north bound L. & N. passenger train No. 2 of which R. S. Adams was engineer. The railroad runs north and south and Springdale Road, a hard surface road, crosses it from east to west at right angles, about a mile and a half south of New Castle, and a mile and a half north of Black Creek.

One hundred sixty-five feet west of the railroad is a public road known as the Lewisburg-New Castle Road. The railroad is double track and straight for 276 feet south of the crossing and 450 feet north of the crossing. The train was proceeding in a northerly direction over the easternmost track and intestate came from the east and was driving a truck. The front wheels of the truck were barely over the east rail when the collision occurred. Intestate was killed.

December 29, 1941, plaintiff, father of Devoda Bailey, filed suit in the circuit court against the Louisville & Nashville Railroad Company and R. S. Adams, its engineer. The complaint is stated in three counts. Defendant demurred to the several counts and plaintiff amended each. Demurrers of defendants to the amended complaint were overruled. Thereupon each defendant separately and severally pleaded the general issue, in short by consent, with leave to give in evidence any matter which would constitute a good defense if specially pleaded. Plaintiff withdrew counts one and three, standing on amended count two. June 4, 1942, the cause was tried before a jury, resulting in a verdict and judgment in favor of the plaintiff, and a motion for new trial was duly overruled, exception being reserved.

Amended count two, based on negligence, alleges in substance that on the 18th of November, 1941, defendants were engaged in operating a railroad train at Springdale crossing where the railroad tracks are on grade with the public highway at a point approximately two miles north of Lewisburg, and that plaintiff's minor son, Devoda Bailey, was driving an automobile truck on Springdale Road, and defendants ran the train against the automobile which Devoda Bailey was driving, and as a proximate consequence thereof Bailey sustained injuries from which he died on that date. "The death of said minor son were [was] caused as a proximate result of the negligence of the defendants in and about the operation of said railroad train at said time and place."

There was conflict in the evidence as to giving the statutory signals for railroad crossings. Pertinent provisions of said statute are: "The engineer or other person having control of the running of a locomotive on any railroad, must blow the whistle or ring the bell at least one-fourth of a mile before reaching any public road crossing, or any regular station or stopping place on such railroad, and continue to blow the whistle or ring the bell at short intervals, until it has passed such crossing, or reached such station or stopping place. * * * and also immediately before entering any curve crossed by a public road, where he cannot see at least one-fourth of a mile ahead, and must approach and pass such crossing at such speed as to prevent accident in the event of an obstruction at the crossing. * * *" Code 1940, Tit. 48, § 170.

The diagram of the crossing and immediate approach thereto reproduced in evidence shows a sharp curve in the railroad about 276 feet in the direction in which the train approached...