Alabama Great Southern R. Co. v. Durr, 6 Div. 844.

• Decision Date: 19 March 1931
• Docket Number: 6 Div. 844.
• Citation: 133 So. 56,222 Ala. 504
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. DURR.
• Court: Alabama Supreme Court

133 So. 56

222 Ala. 504

ALABAMA GREAT SOUTHERN R. CO. v. DURR.

6 Div. 844.

Supreme Court of Alabama

March 19, 1931

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action for damages by Aaron Durr against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Benton Bentley & Moore, of Bessemer, for appellee.

FOSTER J.

Plaintiff in the circuit court obtained a judgment against appellant for an injury to an automobile belonging to plaintiff in a collision with a railroad train at a public street intersection. The only count was for simple primary negligence, and there was no subsequent negligence shown by the evidence. The defendant pleaded the general issue with leave to give in evidence any matter of special defense. There was evidence of primary negligence of defendant. The defense was contributory negligence.

Plaintiff was driving an open car at night. The train was approaching with headlight burning from plaintiff's right, on a track which was straight for at least half a mile or a mile. There was a storehouse on his right, approaching the track, a distance estimated by plaintiff at 25 to 30 feet, and by plaintiff's witness at 70 feet away from the railroad. Plaintiff's evidence tended to show that, after passing the storehouse and at the "stop" sign near the track he stopped his car and looked in both directions, but did not see the train; that an automobile was approaching opposite him, and its lights blinded him; there were two tracks, and the train was coming on the far track from plaintiff as he approached; that as he reached the track the train came upon them, and they jumped out, but the train caught and demolished the car. After passing the store and when he stopped, there was nothing to obstruct plaintiff's view of the train, nor to deaden its noise as it approached. Defendant requested the affirmative charge. We think it should have been given.

The fixed rule of law in this state, as frequently quoted, is that, as one approaches a railroad track, even at a public street crossing, he is bound, if he reasonably can do so, to "stop so near to the track, and his survey by sight and sound must so immediately precede his effort to cross over it, as to preclude the injection of an element of danger...