Alabama Great Southern R. Co. v. Bishop

Decision Date14 June 1956
Docket Number7 Div. 291
Citation265 Ala. 118,89 So.2d 738,64 A.L.R.2d 1190
CourtAlabama Supreme Court
Parties, 64 A.L.R.2d 1190 ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. Burnett Morgan BISHOP.

Lusk, Swann & Burns, Gadsden, for appellant.

Copeland & Copeland and Hawkins & Rhea, Gadsden, and Hare, Winn & Newell, Birmingham, for appellee.

SIMPSON, Justice.

The plaintiff recovered a judgment for personal injuries from which the defendant has appealed. Upon the former appeal of the case it was held that the defendant was entitled to the affirmative charge. Alabama Great So. R. Co. v. Bishop, 259 Ala. 629, 68 So.2d 530.

On the trial below which followed, one count was submitted to the jury charging the defendant with negligently constructing or maintaining a public railroad crossing in allowing a crevice to exist between the tracks and a cross-tie or timber parallel therewith and adjacent thereto. As a proximate consequence thereof the complainant alleged that, while crossing the tracks, plaintiff's foot was caught in the crevice and he was caused to fall, and while his foot was so caught the train ran over it.

On the former appeal, the court upon the evidence there presented, observed, 'It is apparent that the only way and manner in which a person's foot could be accidentally caught in that crevice was what occurred as appellee contends, that is, to fall across the rail so as to push the toe of his shoes straight down. It could not occur to one simply walking or running uprightly across the track unless he should fall * * *.

'We cannot see that it was a fair inference from the facts that the crevice produced a condition dangerous to one walking or running across the track in the observance of ordinary care.' Alabama Great So. R. Co. v. Bishop, supra, 259 Ala. 632, 68 So.2d 533.

In the trial below, an expert witness (whose testimony was not offered on the former trial) testified on behalf of plaintiff. The defendant urges error on the part of the trial court in admitting the opinion evidence of such expert witness. The expert, one Kershaw, testified over defendant's objection that the construction of the crossing in question was not reasonably proper and safe from the standpoint of the safety of a pedestrian at a grade crossing much used by pedestrians; that the absence of any filling in the void creates a hazard in pedestrian, vehicular or animal traffic; that leaving the void unfilled left the crossing not reasonably safe for pedestrians; and that the crossing was not reasonably safe.

The crevice at the crossing in which the plaintiff's foot was caught, the maintenance of which is the only negligence on which the verdict rested, was approximately two inches in width and six inches in depth.

The rule governing admissibility of expert opinion evidence is that such evidence should not be admitted unless it is clear that the jurors themselves are not capable, from want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. It is not admissible on matters of common knowledge. New York Life Ins. Co. v. Jones, 31 Ala.App. 417, 17 So.2d 879, reversed on other grounds 245 Ala. 247, 17 So.2d 883; Crotwell v. Cowan, 236 Ala. 578, 184 So. 195; Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881; Central of Georgia R. Co. v. Bagley, 173 Ala. 611, 55 So. 894; City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723; McElroy on Evidence, §§ 127, 128, pp. 49-51; 20 Am.Jur., Evidence, §§ 765, 780, 781, 798, 819; 32 C.J.S., Evidence, § 520.

The strict question with regard to this testimony is whether or not an average juror would be capable of forming a correct conclusion in respect to the safeness or unsafeness for persons to walk over a crevice two inches wide and six inches deep in a populous railroad crossing. If this question is answered in the affirmative, the trial court was in error in allowing, over the defendant's objection, the expert to express the aforementioned opinions.

In Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So.2d 89, expert witnesses were permitted to express the opinion that the track at the point where the derailment occurred was in a safe condition for the use to which it was put.

An expert was allowed to express an opinion as to whether or not a ventilation system in a mine was adequate to remove the dust in Tennessee Coal, Iron & R. Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459. In Atlantic Coast Line R. Co. v. Hardwick, 239 Ala. 58, 193 So. 730, the defendant sought to show by an expert the condition of the ventilator lift in question by propounding the following inquiry: 'Was it a support suitable and satisfactory for the purpose for which it was used?' This court held that the expert should have been allowed to express an opinion thereon.

However, the above cases, cited by plaintiff in support of the trial court's ruling, are distinguishable from the case at bar in that the subject matter in respect to which the expert was allowed to give opinion evidence was not one of common knowledge and experience of men. We conclude that the subject here under examination, e. g., a crevice in a crossing (any more than a hole in the sidewalk or street) does not require expert opinion that it would be safe or unsafe for pedestrians for the reason that, given the physical facts, the ordinary mind is capable of forming a judgment thereon. See Alabama Great So. R. Co. v. Baum, 249 Ala. 442, 31 So.2d 366; Capital Motor Lines v. Gillette, supra; New York Life Ins. Co. v. Jones, supra; Downing v. Drybrough, Ky., 249 S.W.2d 711; Burton v. Horn & Hardart Baking Co., 371 Pa. 60, 88 A.2d 873; Ming v. City of Jackson, 202 Miss. 260, 31 So.2d 900; District of Columbia v. Haller, 4 App.D.C. 405; Central of Georgia Ry. Co. v. Bagley, supra; City of Birmingham v. Crane, supra.

For the error in admitting the testimony of Mr. Kershaw as above referred to the judgment must be reversed.

Appellant insists that the affirmative charge should have been given on its behalf. For the purpose of another trial we will write to this point.

Viewing the tendencies of the evidence most favorable to the plaintiff, the material facts and reasonable inferences to be drawn therefrom appear to be as follows: Plaintiff walked up to the public railroad crossing and at a distance of ten to fifteen feet from such crossing he stopped and looked in the northerly and southerly directions, he testified he did not see the train in question. To the plaintiff's left, however, he did see a switch engine at a distance of approximately one hundred feet and coming toward the crossing puffing and blowing and making a 'pretty good noise'; the plaintiff saw a trainman who was walking in front of the switch engine give a signal for the switch engine to back up; the plaintiff also testified that the trainman motioned for him to cross; the switch engine began backing away from the crossing. Plaintiff then proceeded toward the crossing; he did not again look to his right until he stepped across the first rail (the western rail); plaintiff testified that the train in question was at this time (i. e., after he stepped across the first rail) about thirty-six yards away; the train was then traveling at a rate of approximately thirty-eight to forty miles per hour; plaintiff then jumped toward the second rail (the eastern rail); his left foot slipped, his toe caught in the crevice, and he fell forward. Before he could extricate himself, the train had passed over his left leg The crevice in which the plaintiff's foot was caught was between the east rail and a piece of timber extending parallel thereto and adjoining the pavement between the rails on its west. As heretofore stated, it was about two inches wide and six inches deep. The opening or crevice was made necessary so that the flange on the wheels could pass over in the operation of the train. There was expert evidence offered by plaintiff that the maximum depth which would be occupied by the flange of the wheel would be 1 1/4 inches.

The governing principle, as set out in the former opinion, is that the 'defendant must not create a condition, either purposely or negligently, which is or will be dangerous to some person acting upon that condition in such way and manner as should be anticipated or foreseeable in the ordinary course of conduct by reasonably prudent people.' Alabama Great So. R. Co. v. Bishop, supra, 259 Ala. at page 632, 68 So.2d at page 532.

Where a railroad constructs its road across a highway or public road, the duty devolves on it to construct and maintain the approaches and crossing in a condition reasonably safe for the use of the traveling public. Southern Ry. Co. v. Posey, 124 Ala. 486, 26 So. 914; Patterson v. South & North Ala. R. Co., 89 Ala. 318, 7 So. 437. The allowing of space to remain between the planking and the rail of a crossing sufficiently large to admit and hold a person's foot resulting either in injury from the crossing itself or by a collision from trains due to the inability to leave the crossing in time to avoid injury, has been held to present a jury question as to negligence on the part of the railroad. Samkiwicz v. Atlantic City R. Co., 82 N.J.L. 478, 81 A. 833, 39 L.R.A.,N.S., 571; Chesapeake & O. Ry. Co. v. Pope, 296 Ky. 254, 176 S.W.2d 876; Gibson v. Chicago Great Western R. Co., 117 Minn. 143, 134 N.W. 516, 38 L.R.A., N.S., 184; Spooner v. Delaware, L. & W. R. Co., 115 N.Y. 22, 21 N.E. 696, Ann.Cas.1913C, p. 1266; 44 Am.Jur., Railroads, §§ 496, 535, pp. 735, 736, 783.

In the light of these cases we hold the defendant was not entitled to the affirmative charge on the issue of initial negligence.

The next question for our determination is whether the plaintiff is barred of recovery because of his contributory negligence, thereby entitling the defendant to affirmative instructions with hypothesis on that issue. Unless the evidence regarding contributory negligence is entirely free of...

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