Alabama Great Southern R. Co. v. Molette

• Decision Date: 27 April 1922
• Docket Number: 6 Div. 626.
• Citation: 207 Ala. 624,93 So. 644
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. MOLETTE.
• Court: Alabama Supreme Court

93 So. 644

207 Ala. 624

ALABAMA GREAT SOUTHERN R. CO. v. MOLETTE.

6 Div. 626.

Supreme Court of Alabama

April 27, 1922

Rehearing Denied June 1, 1922.

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action for damages by Albert Molette against the Alabama Great Southern Railroad Company. From a judgment for the plaintiff defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

An argumentative instruction is properly refused.

The following charges were refused to defendant:

(61) If you believe from the evidence that the plaintiff negligently placed himself on the track in close proximity to a rapidly approaching train, and that he thereafter lost his presence of mind and heedlessly, thoughtlessly, or through forgetfulness neglected to extricate himself when he might have done so by the exercise of due care, and that this was the sole cause of the injury complained of, then your verdict must be for the defendant.

(62) If you believe from all the evidence in this case that the plaintiff negligently placed himself on the track of the defendant in close proximity to a rapidly approaching train and that he thereafter lost his presence of mind and heedlessly, thoughtlessly, or through forgetfulness neglected to extricate himself when he might have done so by the exercise of due care, and that this action on the part of the plaintiff proximately contributed to the injury complained of, then your verdict must be for the defendant.

(69) If you believe from the evidence in this case that the plaintiff was driving an automobile truck shortly before the accident and that he got excited and negligently choked the engine on said track in close proximity to a rapidly approaching train, and that his said conduct was the cause of the collision and injury complained of, your verdict must be for the defendant.

D. I charge you that the laws of the state of Alabama do not require this defendant to approach a crossing on a straight track at a street crossing so as not to inflict injury to a person who is on its said railroad, who has failed to stop, look, and listen before going on such track.

GG. Before you can find for the plaintiff in this case, you must be reasonably satisfied from the evidence: First, that the engineer, Fleming, became aware of the danger of the plaintiff being struck by an engine; second, that thereafter the engineer failed to use the means he had at hand on the engine to prevent injuring plaintiff, or that he used the means at hand negligently; and, third, that such failure on the engineer's part or such negligent use of the means at hand was either consciously done by him, or negligently done by him after knowledge of plaintiff's peril.

HH. Unless you are reasonably satisfied from the evidence that the engineer, Fleming, became actually aware of the danger of the plaintiff being struck by the engine, and should have known by the exercise of due care on his part that the plaintiff was unaware of the approach of the engine, and that thereafter the engineer consciously omitted to do something that he ought to have done to prevent striking the plaintiff, or consciously did something he ought not to have done in that regard, you cannot find for the plaintiff under the third count of the complaint.

II. Unless you are reasonably satisfied from the evidence that the fireman, Allen, became actually aware of the danger of the plaintiff being struck by the engine, and should have known by the exercise of due care on his part that the plaintiff was unaware of the approach of the engine, and that thereafter the fireman consciously omitted to do something that he ought to have done to prevent striking the plaintiff, or consciously did something he ought not to have done in that regard, you cannot find for the plaintiff under the third counts of the complaint.

(45) The court charges the jury that if any individual member of the jury is reasonably satisfied from the evidence that the plaintiff was guilty of contributory negligence as alleged, which proximately contributed to the injury and damage complained of, then there can be no recovery in this case under those counts of the complaint which seek a recovery for the alleged simple negligence of this defendant, or its servants, agents, or employees.

Smith, Wilkinson & Smith, of Birmingham, for appellant.

Huey & Welch and Goodwyn & Ross, all of Bessemer, for appellee.

SAYRE J.

There was no error in sustaining the demurrer to defendant's plea of contributory negligence numbered 11. The plea is defective in its statement of the facts. The allegation that plaintiff was laughing and talking with two negro women on his truck is an allegation of evidential fact, not the legal equivalent of an allegation that plaintiff drove upon the track without looking and listening as due care required that he should do. The gist of the plea is that plaintiff heedlessly or thoughtlessly drove upon the track. This was the allegation of a mere conclusion without sufficient supporting facts, and for this deficiency the plea was properly held bad. It was open to criticism in other respects also, perhaps, but many of the grounds of demurrer were merely general, and it is doubted that any other objection to the plea was well taken.

Pleas 12 and 13 were insufficient also. They allege in the alternative that plaintiff, being aware of his danger, heedlessly, thoughtlessly, or recklessly remained on the track in front of an approaching train. The argument and the authorities cited lead to the inference that the pleader avoided the word "negligently" because of the accepted definition of negligence as the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It appears to be the contention of appellant that, because plaintiff in the first place put himself negligently in a position of peril, it was incumbent on him to exercise a very high degree of care to extricate himself, and no allowance was to be made for the confusion and lack of efficiency which the suddenness of his peril may have induced. In other words, to measure the defense by one of its aspects, plaintiff could not recover, though defendant saw his peril in time to have prevented it, if he failed to take such steps as reflection would have dictated. But in such cases the test is whether under all the circumstances, and in view of the sudden danger, the person injured acted as a reasonably prudent person would have acted, and this rule appears to have been applied in cases involving secondary contributory negligence. Norwood Transportation Co. v. Bickell (Ala. Sup.) 92 So. 464; Cook v. Central Railroad Co., 67 Ala. 533; 10 Mich. Dig. p. 569.

Under the foregoing proposition the brief groups a number of charges refused to defendant, which may as well be noticed at this point. Charge 41 was a mere argument and properly refused for that reason, if no other. Other charges in this group, charges 61, 62, 69, and D, were all properly refused because they ignored the doctrine stated in our consideration of pleas 12 and 13, or they ignored that tendency of the evidence going to sustain the charge of negligence on the part of defendant after becoming aware of plaintiff's danger.

There was no error in allowing plaintiff to show that defendant kept no flagman at the street crossing at which plaintiff was injured and that there was no flagman there at the time. It is not perceived how this testimony could have prejudiced the defense, for it excluded the idea that plaintiff may have relied upon a flagman for any warning of danger.

The testimony of the witness Phelps that he had been crossing defendant's railroad in automobiles and had seen other people going over it with automobiles, wagons, buggies, and trucks for eight years, served to show the witness' familiarity...