Alabama Great Southern R. Co. v. Grauer, 2 Div. 830

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 102 So. 125,212 Ala. 197
• Decision Date: 06 November 1924
• Docket Number: 2 Div. 830
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. GRAUER.

102 So. 125

212 Ala. 197

ALABAMA GREAT SOUTHERN R. CO.
v.
GRAUER.

2 Div. 830

Supreme Court of Alabama

November 6, 1924

Rehearing Denied Nov. 27, 1924

Appeal from Circuit Court, Greene County; Fleetwood Rice, Judge.

Action for damages for wrongful death by L.M. Grauer as administrator of the estate of Hilton Grauer, deceased, against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. [102 So. 126]

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

Harsh, Harsh & Harsh, of Birmingham, and Harwood, McKinley, McQueen & Aldridge, of Eutaw, for appellee.

THOMAS, J.

A report of the case is Grauer v. A.G.S.R. Co., 209 Ala. 568, 96 So. 915. On the last trial the cause was submitted to the jury upon the wanton count of the complaint. No question upon the pleadings is presented for review.

This court has declared that the violation of the speed limit set forth in a municipal ordinance is simple negligence only; yet under a wanton count the ordinance is admissible, in connection with other evidence of its violation, as the basis for an inference of the character of the act concerning which complaint is made. Yarbrough v. Carter, 179 Ala. 356, 60 So. 833; B., E. & B.R.R. Co. v. Williams, 190 Ala. 53, 66 So. 653; A.G.S.R. Co. v. Bell, 200 Ala. 562, 76 So. 920, L. & N.R.R. Co. v. Lloyd, 186 Ala. 119, 65 So. 153; L. & N.R.R. Co. v. Webb, 97 Ala. 308, 315, 12 So. 374. There was no reversible error in the rulings relating to, and the admission in evidence of, the ordinance of the town of Epes in the manner indicated by the bill of exceptions. That ordinance was considered as read and in evidence. Code 1907, § 3989; Town of Elba v. Cooper, 208 Ala. 149, 93 So. 853; Payne v. Roy, 206 Ala. 432, 90 So. 605. The dictum contained in Central of Ga. Ry. Co. v. Blackmon, 169 Ala. 304, 313, 53 So. 805, is not in harmony with the authorities first above cited. In that case the injury was sustained without the corporate limits, and the issue of fact was subsequent negligence. On the former appeal in the instant case we did not hold that the ordinance in question was not admissible in evidence, but only that its exclusion, under the facts of the case, was not prejudicial to plaintiff.

In L. & N.R.R. Co. v Heidtmueller, 206 Ala. 29, 89 So. 191, and Grauer v A.G.S.R. Co., 209 Ala. 568, 96 So. 915, it was declared [102 So. 127] not permissible to prove extraordinary or exceptional uses of the track at times materially different from that when the accident occurred. However, this exception would not preclude evidence of a custom and such usage of large numbers of people on special occasions well known to those operating engines or trains over the tracks at such place and at such time, if from such usage it could be reasonably inferred that a like usage would be exercised, and that human beings (in all reasonable probability) would be exposed to peril at the time of the accident. It is the likelihood of peril to the safety of passers-by known to defendant's employees which makes the duty--not the place itself. Nave v. A.G.S.R. Co., 96 Ala. 264, 11 So. 391; Ga. Pac. R. Co. v. Lee, 92 Ala. 271, 9 So. 230; Haley, Adm'r, v. K.C., M. & B.R.R. Co., 113 Ala. 640, 652, 21 So. 357; A.G.S.R. Co. v. Guest, Adm'r, 136 Ala. 348, 352, 34 So. 968; Southern Ry. Co. v. Forrister, 158 Ala. 477, 483, 48 So. 69; B.S. Ry. Co. v. Fox. 167 Ala. 281, 285 52 So. 889; Southern Ry Co. v. Stewart, 179 Ala. 309, 310, 60 So. 927; Northern Alabama Ry. Co. v. Guttery, 189 Ala. 604, 611, 66 So. 580; A.G.S.R. Co. v. Snodgrass, 201 Ala. 653, 655, 79 So. 125; Grauer v. A.G.S.R. Co., 209 Ala. 568, 573, 96 So. 915.

There was no reversible error committed in permitting the witness Dr. Reid and others to declare the general or ordinary use of the track at the point in question by the public before and to the time when Hilton Grauer was killed. This was not an inquiry of the use of the track at the point in question by a number of people on special occasions, as was the subject of discussion in L. & N.R.R. Co. v Heidtmueller, 206 Ala. 29, 89 So. 191. In the former appeal (in this case) Mr. Justice Somerville noted as pertinent questions of fact for the jury the "density of the neighboring population," "general custom of use" of the track as a "walkway," the "number," "frequency, and notoriety" of such use by the people. These observations illustrate the meaning of the immediate and subsequent clause of that opinion that evidence of the use on "special occasions," for "special purposes," was immaterial as being of occasions not likely to recur generally. So by the expression "special purposes" was meant "not likely to occur" at the time and place in question. These expressions are consistent with the other declarations of this court contained in the foregoing decisions that evidence of a general usage or custom was pertinent and admissible in a case like this. There was no error in permitting the several witnesses (Reid, Grauer, Legrone, Anderson, Sawls, and Smith) to testify as to the custom or general use by the traveling public of the defendant's tracks as a walkway at the time and place in question. In the admission of such evidence the exception declared and defined in L. & N.R.R. Co. v. Heidtmueller, 206 Ala. 29, 89 So. 191, was not overlooked.

A witness (Miss Richie) had testified as to the details of the accident, the general and customary use by the public and her family of said tracks as a walkway to and at the place where Hilton Grauer was killed, and was asked this question: "Do you know who kept those steps up, whether the railroad did or not?" She answered: "The railroad kept the steps up." This evidence, and that of R.L. Hilton, taken with the other evidence, tended to show the custom of the traveling public to use the track at the time and place as a walkway was by permission and a circumstance or basis for the inference, with other evidence, that the custom was known to the employees of defendant in charge of the train.

The witness R.L. Hilton, the depot agent, was asked:

"Now, get back to what was said by Hilton Grauer [the deceased] and yourself and the conductor and any other person in that crowd that were there in the presence of each other on the day that Hilton was killed, and shortly before he was killed."

The witness answered:

"He [the deceased] came up to where we were, Conductor Garrett and myself, and said that he was going down the track to Mrs. Horton's to take dinner, and Conductor Garrett told him he wished he could go with him. And I asked him to wait and take dinner with me and go down later, and he said that he was invited there by some young ladies for dinner and he would have to keep his date, and he immediately left us, and we didn't see him any more *** When Hilton Grauer left us he started down the track. The Mrs. Horton that I spoke of is Mrs. Oster's mother, and they live together When he started down the track the local train killed him When he left us the local was standing still, but it started soon afterwards."

This evidence was adduced at the other trial, and is set out in the statement of facts. The learned justice observed of the evidence generally (Grauer v. A.G.S.R. Co., 209 Ala. 572, 96 So. 918):

"Do the facts of the case satisfactorily show that some person would probably be on the track at any given time; that his probable presence there is known to the responsible trainmen; and that,

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