Alabama Power Co. v. McGehee

• Decision Date: 01 March 1934
• Docket Number: 3 Div. 92.
• Citation: 154 So. 105,228 Ala. 505
• Parties: ALABAMA POWER CO. v. McGEHEE.
• Court: Alabama Supreme Court

154 So. 105

228 Ala. 505

ALABAMA POWER CO. v. McGEHEE.

3 Div. 92.

Supreme Court of Alabama

March 1, 1934

Rehearing Granted April 12, 1934.

Appeal from Circuit Court, Montgomery County; Lee H. Weil, Special Judge.

Action for damages for personal injuries by Ralph D. McGehee, a minor suing by his next friend, J. C. McGehee, against the Alabama Power Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded on rehearing.

Steiner Crum & Weil, of Montgomery, and Martin, Turner & McWhorter and Walter Bouldin, all of Birmingham, for appellant.

Thos B. Hill, Jr., and Wm. Inge Hill, both of Montgomery, for appellee.

BROWN Justice.

This is an action on the case to recover damages for injuries inflicted on the plaintiff's person, resulting from the overturning of an automobile in which he was riding, returning from Anderson's Camp to Montgomery along a public highway "known as the old Birmingham Highway."

The first count of the complaint ascribes plaintiff's injuries to the negligence of the defendant's agents, servants, or employees, acting within the scope of their employment "in negligently excavating across said road, or public highway aforesaid, a hole of a width of about five feet and of great depth," into which said automobile was driven and caused to overturn.

The second count ascribes the injuries to the defendant's agents, servants, or employees while acting within the scope of their employment in making such excavation and negligently leaving the same "wholly unguarded and untended or insufficiently guarded and tended for an unreasonable length of time before said accident."

The pleas were the general issue and contributory negligence, pleaded in short by consent.

The evidence is without dispute that some years prior to the occurrence out of which this litigation arose the defendant constructed and maintained railroad tracks which intersected the highway about 6 miles north of Wetumpka in Elmore county. These tracks were used by the defendant in connection with the construction of one of its power dams nearby, but had not used them for two or three years prior to the plaintiff's injury, and in the meantime the road machines used by the public authorities in maintaining the highway had dragged or thrown gravel and dirt over the tracks, which were located in a slight depression in the highway, in such sort as that a locomotive could not pass along the tracks across the highway without the removal of the dirt and gravel; that, shortly before the occurrence of plaintiff's injury, defendant, desiring to abandon the railroad and remove the rails and ties, removed the dirt and gravel from the railroad tracks so that it could use its locomotive and cars in taking up and removing the rails and ties.

The evidence is in dispute as to the depth of the excavation, the defendant's evidence going to show that there was no excavation on the east side of the highway, but that the dirt and gravel were scraped off the tracks and along the side of each track so as to allow the flange of the drivers on the locomotives to pass over without derailing, but on the west margin of the highway there was an excavation of about three inches, the work being done with shovels by the defendant's employees. Where the dirt was removed alongside the rails, the excavation was 3 or 4 inches.

The evidence offered by the plaintiff, on the other hand, tended to show that the excavation was from 4 to 14 inches deep.

The evidence further shows that "stop, look and listen" signboards were maintained on each side of the railroad, some distance therefrom; that these had been placed when the railroad was first constructed and while in actual use; that defendant had not used this railroad since 1929, up until about ten days before plaintiff's injury.

The evidence further shows that defendant placed red flags on sticks either driven into the ground or in old cross-ties near the railroad tracks on the west margin of the highway, standing about 3 1/2 feet high, and at night on one of these sticks a red lantern was hung on a nail clearing the cross-tie about 2 inches, and about 10 or 12 feet from the railroad tracks.

The defendant's evidence further tended to show that the weeds growing along the margin of the highway, on defendant's right of way, had been cut, and that the stick with the lantern hanging on it was on the right of way where the weeds were cut.

The highway from the north approached the railroad tracks around a curve, the inside of the curve being on the west, the curve ending, as defendant's evidence goes to show, by actual measurements, 310 feet before the highway reached the railroad crossing, and that the lantern was visible 360 feet from the crossing.

The plaintiff's evidence, on the other hand, tended to show that the curve led up to within 50 feet or near to the crossing, and the lighted lantern was not visible, if at all, until a traveler along the highway approaching from the north reached the end of the curve.

The automobile in which plaintiff was riding-a roadster with rumble seat-driven by Frank Williford, approached the crossing from the north about 1 o'clock a. m., on August 14th, 1932, ran into the depression at the railroad crossing, causing Williford to lose control and land in the cotton field some distance from the crossing and turn over, injuring the plaintiff.

A young lady was riding on the front seat with Williford, and the plaintiff and Carter Christie were on the rumble seat.

The testimony of plaintiff, Williford, and Christie was to the effect that the automobile approached the crossing at the rate of from 30 to 35 miles per hour. There was evidence offered by the defendant, and circumstances attending the wreck of the automobile, tending to show that it was running at a greater rate of speed.

The appellant's first contention is that there is no basis in the evidence to warrant a finding by the jury that the defendant's agents or servants were guilty of negligence proximately causing the plaintiff's injury. To sustain this contention, appellant advances two theories: (1) That the evidence is insufficient to warrant an inference of negligence, because the defendant was under no duty to maintain the crossing on the highway grade, nor does it warrant an inference that the defendant "could have made a less excavation than it did"; and (2) that the evidence shows, without room for adverse inference, that the negligence of...