97 Ala. 308, Louisville & N.R. Co. v. Webb

• Decision Date: 01 February 1893
• Citation: 97 Ala. 308,12 So. 374
• Parties: LOUISVILLE & N. R. CO. v. WEBB.
• Court: Alabama Supreme Court

12 So. 374

97 Ala. 308

LOUISVILLE & N. R. CO. v. WEBB.

Supreme Court of Alabama

February 1, 1893

Appeal from circuit court, Jefferson county; James B. Head, Judge.

Action by B. T. Webb against the Louisville & Nashville Railroad Company for personal injuries. From a judgment for plaintiff defendant appeals. Affirmed.

Stone C.J., dissenting.

Hewitt Walker & Porter, for appellant.

James J. Banks and Caboniss & Weakly, for appellee.

COLEMAN J.

The facts of the case are substantially the same as reported in 90 Ala. 185, 8 South. Rep. 518, when the case was here on a former appeal. We will not undertake to repeat them again further than may be necessary for a proper understanding of the questions to be considered on this appeal. There are no assignments of error, except those based upon the refusal of the court to instruct the jury as requested by the defendant. Most of the charges requested and refused may be considered together, and the correctness of the ruling of the court upon them all, we think, depends upon whether there was evidence tending to show that defendant was guilty of such reckless or wanton negligence in inflicting the injury complained of as authorized a recovery by plaintiff, notwithstanding he was guilty of contributory negligence, and whether or not the ascertainment of the degree of negligence of which defendant was guilty, under the circumstances of this case, was properly referred to the jury; or was it the duty of the court to pronounce the conclusion of law as to the degree of negligence upon the facts introduced in evidence, and as hypothesized in the several charges requested and refused? That the defendant was guilty of negligence, and plaintiff of contributory negligence, was determined by this court on the former appeal, and, so far as these questions are involved, the facts presented in the present record are substantially the same, and fully sustain the correctness of the conclusion then declared. The injury was inflicted in the city of Birmingham at a crossing on Twenty-Fourth street,-a public thoroughfare; and the evidence shows that residents of the city "went backwards and forwards, to a great extent, over this crossing." By a city ordinance the speed of trains moving forward was limited to a rate of 8 miles per hour, and those backing to 4 miles per hour, and, while moving at these rates, were required to signal their approach. The proof shows that the train in question was backing, and the evidence of the different witnesses rates its speed at from 8 to 25 or 30 miles per hour. The evidence is in conflict as to whether any danger signals of its approach were given, as required by the statute or city ordinance. The evidence shows that other railroads had parallel lines to defendant's, and in close proximity, upon which there were cars, and which obstructed the view of persons who were beyond these parallel lines, but to one immediately near defendant's line the approaching train could easily have been seen for some distance before it reached the crossing. The evidence tends to show that defendant's employes operating the train did not discover, as a matter of fact, the presence and peril of plaintiff in time to have avoided the injury by the exercise of all possible preventive effort. We believe the controlling facts of the case are fully and fairly stated. There was a city ordinance, also, which required the trains to come to a full stop before crossing Twenty-Fourth street, and, when backing, not to move forward until signaled to do so by a watchman at such crossing.

The first question to be considered is whether there are any facts in evidence which show, or from which it could be legally inferred, that defendant was guilty of such reckless and wanton negligence as to authorize a recovery notwithstanding plaintiff's contributory negligence. We have often held that if plaintiff's peril was discovered in time to avoid the injury by the exercise of due care on the part of the defendant, and the injury was the result of the failure to perform its duty in this respect, plaintiff would be entitled to recover, although he may have been guilty of culpable negligence in the first instance. Tanner v. Railroad Co., 60 Ala. 641; Railroad Co. v. Womack, 84 Ala. 149, 4 South. Rep. 618; Frazer v. Railroad Co., 81 Ala. 185, 1 South. Rep. 85; Railway Co. v. Lee, 92 Ala. 262, 9 South. Rep. 230. We have held that the mere failure to ring the bell or blow the whistle as the train approached a public crossing constitutes but simple negligence. Railway Co. v. Lee, supra. A breach of duty may amount to simple negligence, or it may rise to the degree of reckless or wanton negligence, according to the place and circumstances of its commission or omission. In the case of Railroad Co. v. Deaver, 79 Ala. 221, it was held that "the rate of speed may become negligence by a co-operation of attendant circumstances, and the locality of the crossing. What would be the observance of due care and caution on approaching and passing a public crossing in the open country would not be such when running over the streets of a town or village, or in passing thoroughfares of frequent travel;" and this was declared to be the rule, independent of statute.

In the case of Railroad Co. v. Womack, 84 Ala. 149, 4 South. Rep. 618, the principle was distinctly recognized that it was the duty of railroad officers to keep a lookout for persons who might be upon their track in cities, towns, or public crossings; and in the case of Frazer v. Railroad Co., 81 Ala. 195, 1 South. Rep. 85, that the duty "was commensurate with the probable occurrence of obstruction and other dangers, and arises, as to human beings, when the train is approaching a public crossing, or passing through the streets of a city, town, or village." The same rule is declared in Railway Co v. Chewning, 93 Ala. 29, 9 South. Rep. 458. In the case of Railroad Co. v. Arnold, 84 Ala. 168, 4 South. Rep. 359, the court uses this language: "It is a rule of law, as it is a lesson of common experience, that precautionary requirements increase in the ratio that danger becomes more threatening. It is certainly true that less vigilance is demanded at a small country depot of a single road, visited but a few times in the twenty-four hours, than is required in cities where many trains arrive and depart during each day and night." In the case of Bentley v. Railway Co., 86 Ala. 486, 6 South. Rep. 37, it is said that railroad "companies owe trespassers no such duty as to require a lookout for their intrusion, except at public crossings, and within the limits of cities, towns, and villages; *** and such trespasser cannot maintain an action for an injury received while thus trespassing, unless his presence on the track has been discovered, or peril become apparent, in time to avoid the injury, or unless such injury is caused by the wanton, reckless, or intentional negligence on the part of the company or its servants." In the case of Railroad Co. v. Sampson, 91 Ala. 564, 8 South. Rep. 778, it is said: "In towns and densely-populated cities the duty of vigilance and care on the part of those operating railroads in such places becomes proportionately increased and imperative. On the other hand, when it is known that trains follow or pass each other in rapid succession, the measure of duty required of persons crossing the railroad track at such places is proportionately increased." In the case of Railroad Co. v. Lee, 92 Ala. 271, 9 South. Rep. 230, the distinction in the degree of vigilance required of those operating an engine and train over a public crossing of a considerably traveled highway, and one in a popular district of a city, is clearly recognized and strongly stated. After considering the question of negligence which arises from an omission to give the signals of approach, or the maintaining a high rate of speed over the former, and declaring such a breach of duty to be no more than simple negligence, it is held, "that to run a train at a high rate of speed, and without signals...