Alabama Great Southern R. Co. v. Johnston, 2 Div. 493

• Decision Date: 01 June 1967
• Docket Number: 2 Div. 493
• Citation: 281 Ala. 140,199 So.2d 840
• Parties: ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. Virginia D. JOHNSTON, as Administratrix.
• Court: Alabama Supreme Court

Page 840

199 So.2d 840

281 Ala. 140

ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. Virginia D. JOHNSTON, as Administratrix.

2 Div. 493.

Supreme Court of Alabama.

June 1, 1967.

Geo. E. Sledge, Greensboro, and Cabaniss, Johnston, Gardner & Clark, Birmingham, for appellant.

O. S. Burke, Greesboro, and Clement, Rosen, Hubbard & Waldrop, and Robt. B. Harwood, Jr., Tuscaloosa, for appellee.

MERRILL, Justice.

This is an appeal by defendant from a judgment on a verdict of $75,000.00 and from a judgment overruling defendant's motion for a new trial. The action was for the alleged wrongful death of plaintiff's intestate as a result of his driving an automobile into a moving train on a public crossing.

Defendant's demurrer to Counts Six and Seven was sustained but overruled as to ,Counts One, Two, Three, Four and Five. Plaintiff struck Count Two. The defendant pleaded in short by consent the general issue and contributory negligence to Counts One and Three, and the general issue to Counts Four and Five.

Each count of the complaint alleged that plaintiff's intestate, George Rufus Johnston, was driving an automobile on a public highway in Hale County at a point where the defendant's railroad tracts crossed said highway and that plaintiff's intestate was killed in a collision between the automobile he was driving and a train of the defendant.

In summary, Count One charged the defendant with negligence in so negligently operating the said locomotive with a train of cars attached as to cause the same to collide with the automobile plaintiff's intestate was driving.

Count Three of the complaint alleged that the defendant 'negligently allowed its said right of way immediately adjacent to said crossing to grow up in trees, bushes, briars, weeds and vines as (sic) as to conceal said tracts and locomotive with trains of cars attached thereto being operated along and upon defendant's said tracts from the view of travelers upon said public highway at or near said point, or negligently caused or allowed its said right of way immediately adjacent to said crossing to grow up in trees, bushes, briars, weeds and vines so as to obstruct the view of travelers upon said public highway at or near said point of said tracks and of locomotives of trains of cars being operated along and upon defendant's said tracks at or near said crossing and plaintiff further avers that the defendant negligently allowed said trees, bushes, briars, weeds and vines to remain upon defendant's said right to way at said time and place;' and that as a proximate consequence of the negligence of the defendant there was a collision between the automobile and the train and plaintiff's intestate was so injured that he died.

Counts Four and Five were in somewhat similar language to Count Three in that they both complained of alleged conduct in the allowance by the defendant of its right of way to grow up in trees, bushes, briars, weeds and vines as averred in Count Three, but in each of said Counts Four and Five the plaintiff characterized the alleged culpable conduct of defendant as wantonness.

Appellant assigns as error (Assignments 2, 6 and 10) the overruling of its demurrer to Count Three which, as already stated, charged negligence on the part of the defendant in negligently allowing its right of way immediately adjacent to the crossing to grow up in trees, bushes, briars, weeds and vines so as to obstruct the view of travelers.

Some states have statutes requiring a railroad to clear its right of way of trees and shrubs for a specified distance on either side of a crossing, but our legislature has been silent on the subject. There is a split of authority on the question of whether unnecessary obstructions on the right of way, such as trees and shrubs, are actionable, and this court has never specifically decided the question. The only two Alabama cases we have found dealing with the subject are Atlantic Coast Line R. Co. v. Carter, 214 Ala. 252, 107 So. 218, and Curry v. Southern Ry. Co., 148 Ala. 57, 42 So. 447.

The last cited case is not apt authority because the rule in Alabama which prevails as to livestock, does not obtain as to human beings. Central of Georgia Ry. Co. v. Martin, 138 Ala. 531, 544, 36 So. 426, 430.

In the Carter case, supra, the collision was at a private, not a public, crossing. This court said, in part: 'There are cases holding--properly, no doujbt--that the fact that weeds and bushes are allowed by a railroad company to grow upon its right of way so as to obstruct a view of the track at the crossing of a public highway may be considered in determining the question of negligence in the operation of trains at such crossing, but not as actionable negligence per se.' This court cited Cowles v. New York, New Haven & Hartford R. Co., 80 Conn. 48, 66 A. 1020, 12 L.R.A.,N.S., 1067, 10 Ann.Cas. 481, in support of the quoted statement. We quote two excerpts from the Cowles case:

'* * * We think that the mere neglect to cut down such trees, whether causeless or not, whether they could be cut down with slight trouble and expense or not, is not, in the absence of any statute requiring railroad companies to keep their right of way free from unnecessary obstructions to a view of their tracks and trains by persons using an adjacent highway, in itself actionable negligence. * * *

'* * * We have never before had occasion to discuss this question, and must therefore treat it as an open one. For the reasons above suggested, we are satisfied that, while trees growing upon land adjacent to the highway, including land owned by the railroad company, which substantially obstruct the view of a traveler approaching the grade crossing, is clearly one of the circumstances, to be considered in determining whether the railroad company exercised ordinary care in the operation of its cars at a particular time, yet the mere neglect of the company to cut down trees on its own land although proper to be considered with all the surrounding circumstances affecting the care required at that time is not in itself a violation of any legal duty the company owes to a passing traveler (unless so made by statute), and is not therefore in the absence of any other negligence a neglect which constitutes actionable negligence.'

Other cases reaching the same conclusion are Rachal v. Texas & Pacific Ry. Co. (La.App.1952) 61 So.2d 525; Childress v. Lake Erie & W.R. Co., 182 Ind. 251, 105 N.E. 467, and May v. Southern Ry. Co., 259 N.C. 43, 44, 129 S.E.2d 624.

We think the better rule is that unnecessary obstructions such as trees, bushes, shrubs and tall grass, growing on a railroad right of way, which obstruct the view of a traveler approaching a grade crossing, do not constitute actionable negligence; but such circumstances may be considered in determining whether the railroad company exercised ordinary care in the operation of its train or rolling stock at a particular time.

It, therefore, follows that the trial court erred in overruling the demurrer which raised the objection to which we have written.

But we do not hold the error of the trial court to be reversible error. The overruling of a demurrer to one count of the complaint, even though the count is demurrable, where there is another sufficient count in the same complaint presenting the same claim and involving the same evidence, is error without injury where there is a general verdict referable to either count. Central Aviation Co. v. Perkinson, 269 Ala. 197, 112 So.2d 326; Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530; Brush v. Roundtree, 249 Ala. 567, 32 So.2d 246.

Here, Count One charged negligence in the operation of the train, and the evidence of the plant life obstructions was admissible under that count as one of the circumstances to be considered in determining whether the appellant operated its train with due care at the time and place involved. The general verdict could be referred to Count One which presented the same claim, involved the same evidence and claimed the same damages.

Assignments of error 3, 7 and 11 raise the same question as to Count Four that we have discussed as to Count Three. We hold that the trial court erred in overruling the demurrer to Count Four, which charged wantonness. But no reversible error was committed because the same claim and the same evidence given under Count Four could have been given and applied to Count Five, which charged wantonness in the operation of the train and which we hold to have been sufficient.

Assignment 41 charges error in the refusal of the trial court to grant the motion for a mistrial. After the jury had been selected and each side had announced it was satisfied with the jury, the trial court sent the jury to the jury room in order to hear the argument on the motion. Appellant contended there and here that a mistrial or a continuance should have been granted because among the jurors summoned for the week were a son, a brother and four others who were kinsmen, within the prohibited degree of consanguinity or affinity, of either the plaintiff or the decedent.

Each of these people acknowledged their kinship and the court sustained the challenge to each of them. We hold that the trial court did not err in refusing to grant the motion for a new trial.

Assignments of error 42 through 48 are concerned with rulings of the court which overruled objections by appellant to questions propounded to plaintiff's witness Vaughan on direct examination. The witness was permitted to state, over objection, that some six weeks before the collision here in question, he had collided with the engine of a train at the same crossing, that the next day he talked with one Sam Houston, Jr., a claim agent of defendant; that he told Houston 'that there was Johnson grass and weeds along the right-of-way and Mulberry trees and some other kind of scrubby trees that were so tall you couldn't see the train until you got into the crossing.'

The trial court limited the...