Alabama Great Southern R. Co. v. Campbell

• Decision Date: 14 May 1946
• Docket Number: 7 Div. 849.
• Citation: 26 So.2d 124,32 Ala.App. 348
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. CAMPBELL.
• Court: Alabama Court of Appeals

26 So.2d 124

32 Ala.App. 348

ALABAMA GREAT SOUTHERN R. CO. v. CAMPBELL.

7 Div. 849.

Alabama Court of Appeals

May 14, 1946

John A. Lusk, Jr., of Gadsden, for appellant.

Scott & Dawson and C. A. Wolfes, all of Fort Payne, for appellee.

HARWOOD Judge.

The complaint in this case originally contained three counts Nos. A, B, and C. Counts A and B were based on the alleged negligence of appellant in the operation of its train, and on the alleged negligence of the appellant's agents or servants. Count C was based on the alleged negligence of appellant in the maintenance of a road crossing its tracks. At the trial below the court gave the general affirmative charge in appellant's favor as to Counts A and B. A verdict in favor of appellee was returned by the jury on Count C.

At around 10 p. m. on the night of November 19, 1942 appellee's son was driving along the main highway between Attalla and Collinsville. This highway parallels appellant's tracks for a considerable distance. Near Keener a crossing road leads from the highway, across the appellant's tracks and into a pasture owned by one Hawkins, who owned land on both sides of the highway and railroad right of way. This crossing road runs some 60 or 75 feet before crossing appellant's tracks, it was built up some, and had been cherted. However photographs of the road received in evidence show it to be a one lane road and overgrown with grass except for two tracks worn by vehicles. Where the road crosses the tracks appellant had placed slag between the rails, and a few feet on each side but this slag came only about half way up the ball of the rail and the rail stood several inches higher. Appellee's son, upon reaching this crossing road drove down it, crossed the tracks, and drove into the pasture. He then turned around, and started back to the highway. In recrossing the tracks the front wheels of his car slipped and skidded when they hit the rail, and the car became stalled. One of appellant's freight trains shortly thereafter ran into the car demolishing it.

A highly material point in this case concerns the nature of this crossing road, that is whether it is a public or a private crossing. In Southern R. Co. v. Williams, 243 Ala. 429, 10 So.2d 273, our Supreme Court said that the character of such roads is to be determined by the nature of its use rather than the quantum.

Appellee's son testified that he saw tracks of wagons and some cars leading on from the point where he turned his car in Hawkins' pasture.

L. B. Payne, Section foreman for appellant, testified he had been familiar with this crossing for seven years, and that it connected the two portions of Hawkins' farm separated by the railroad. The only use made of the road known to this witness was by Hawkins or his tenants in going into the pasture or in hauling firewood. The road ended or played out in the pasture.

Appellee relies on Southern Ry. Co. v. Holder, 230 Ala. 500, 161 So. 513, and Southern R. Co. v. Williams, supra, in sustaining his contention that the crossing in the instant case was a public crossing. Concerning the nature of the crossing in the Holder case, supra, the court said: 'But the crossing, though not a public one, did serve the public of that neighborhood, and the defendant held out an invitation to the public to cross at this particular place by preparing and maintaining the same for the public convenience, and the proof shows it was so used.' (Italics ours.)

The crossing in the Williams case is described as follows [243 Ala. 429, 10 So.2d 275]: 'Some evidence tended to show this road through improved lands had been open to and used by the public without let or hindrance for some 40 years. That it chiefly benefited the owner and tenants on one large plantation, and those who had occasion to come and go in course of social or business relations with them, is not the test. Evidence tended to show it was not a cul de sac, but connected with the main through highway at either end. A neighborhood road, commonly so called, which furnishes an open outlet to the people of the neighborhood, and to the public in going into and out or passing through the neighborhood at will is none the less public because the public use is not very great.' (Italics ours.)

The distinction between the facts establishing the public nature of the crossings in the above cases and those pertaining to the nature of crossing now under consideration is obvious. In our opinion the evidence submitted establishes this as a private crossing.

The crossing being in our opinion a private one, the appellee's son was thereon in the status of a bare licensee, rather than as an invitee, which status he would have occupied had the crossing been a public one.

The railroad owed him no higher duty than that owed by...