Atlantic Coast Line R. Co. v. Jones

• Decision Date: 12 February 1918
• Docket Number: 3 Div. 280
• Citation: 78 So. 645,16 Ala.App. 447
• Parties: ATLANTIC COAST LINE R. CO. v. JONES.
• Court: Alabama Court of Appeals

78 So. 645

16 Ala.App. 447

ATLANTIC COAST LINE R. CO. v. JONES.

3 Div. 280

Court of Appeals of Alabama

February 12, 1918

On Rehearing, April 9, 1918

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by D.W. Jones against the Atlantic Coast Line Railroad Company for injuries to personal property. From a judgment for plaintiff, defendant appeals. Affirmed, and rehearing denied.

John R Tyson and A.H. Arrington, both of Montgomery, for appellant.

Hill Hill, Whiting & Stern, of Montgomery, for appellee.

BROWN P.J.

It is the duty of a traveler on a public street or highway who approaches a railroad track for the purpose of crossing over it, whether at a guarded or unguarded crossing or whether the crossing is located in a rural country district where the use of the crossing is infrequent, or in a city, town, or village where it is used with great frequency, and whether the railroad is one over which trains are operated on regular schedules and at frequent intervals, or is a side track or switch track infrequently used and at irregular intervals, to exercise reasonable care--that is, the care that an ordinarily prudent man would exercise under like circumstances--to avoid collision with passing trains, and a failure to exercise such care is negligence, and affords a basis for a complete defense to an action for injuries caused by the simple negligence of the trainmen, unless such simple negligence occurs subsequent to the peril thus occasioned, and its discovery by the trainmen in time to avert such injury. Central of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Southern Ry. Co. v. Shelton, 136 Ala. 209, 34 So. 194; L. & N.R.R. Co. v. Moran, 190 Ala. 108, 66 So. 799; L. & N.R.R. Co. v. Loyd, 186 Ala. 119, 65 So. 153; Bailey v. Southern Ry. Co., 196 Ala. 133, 72 So. 67.

" 'Care' and 'negligence' are terms entirely relative, varying in degree with every possible change of circumstances. It is manifest that 'ordinary care' may mean very slight care in one state of circumstances, and comparatively very great care in another. One may drive a vehicle over a country road at a rapid rate of speed, and yet be free from every imputation of negligence, while, if he drives at the same rate through the streets of a populous city, he would be guilty of the grossest want of care. Yet, the measure of his legal duty in each case would be the exercise of ordinary care, graduated to suit the hazard of each changing exigency." Matson v. Maupin, 75 Ala. 312; Williams v. Tyler, 14 Ala.App. 615, 71 So. 51; Alabama City, Gadsden & Attalla Ry. Co. v. Bullard, 157 Ala. 618, 47 So. 578.

"Courts in these matters deal only with ordinary people, that is, the sort of a man which constitutes the standard by which all men and women are to be judged on the question of negligence vel non." Central of Ga. Ry. Co. v. Foshee, supra.

Ordinary care in this sense is the common prudence exercised by an ordinarily prudent man in respect to his own affairs. Seales v. Edmondson, 71 Ala. 509; 4 Mayf.Dig. p. 295, §§ 16, 17; Matson v. Maupin, 75 Ala. 312.

While it is well settled that a traveler who approaches the crossing of a railroad over which trains are operated on regular schedules and at short intervals is guilty of negligence as a matter of law if he fails to stop, look, and listen at a time and place and under circumstances affording a discovery of danger from approaching trains, this application of the doctrine is not appropriate to a switch track that intersects and crosses a public street in a city where the demands of trade and public intercourse necessitate the constant use of the street by the public, and where the tracks of the railroad are very infrequently used and at irregular intervals, as in this case, once or probably twice a week. Under such circumstances, it is the right of the public, subject to the duty of using ordinary care, to use the street, and to use it constantly. Southern Ry. Co. v. Crenshaw, 136 Ala. 582, 34 So. 913.

"The question of negligence vel non is a question of law for the decision of the court 'only when the case is so free from doubt that the inference of negligence to be drawn from the facts is clear and certain.' In all other cases, it is a question of fact, for the determination of the jury." E.T., Va. & Ga. R.R. Co. v. Bayliss, 74 Ala. 150; 4 Mayf.Dig. 295, § 23; Mouton v. L. & N.R.R. Co., 128 Ala. 546, 29 So. 602.

To say that the inference of negligence, which is of fact, inevitably arises from the failure to stop, look, and listen under such circumstances, would not only invite a total disregard of the law, but would result in unreasonably obstructing and strangling traffic on such street, and would be contrary to the common practice of reasonably prudent men.

The rule of "stop, look, and listen" is founded on necessity, and has for its purpose the conservation of human life, and at the same time the promotion of commerce, in its efforts to meet the needs of mankind. To apply to the great arteries of commerce over which trains are moved on regular schedules and at frequent intervals a rule that would require the operation of their ponderous trains at a rate of speed that would not imperil the lives of those who might have occasion to cross over their tracks on public thoroughfares would impose a burden that would result in destroying their efficiency. The known danger incident to such crossings is the foundation and reason for the rule that requires the traveler to stop, look, and listen.

Where the reason for the rule is absent, the rule itself is inapplicable, and to apply it where the reason for its application is not present would ultimately invite its destruction. From the circumstances disclosed by the evidence in this record, the inference of negligence does not necessarily arise from the failure of the plaintiff to stop and look and listen, or stop or look or listen. On the contrary, the evidence clearly shows that one could ordinarily cross the track in question along Randolph street without an element of danger from trains, and the question as to whether the plaintiff was guilty of negligence proximately contributing to the injury of which he complains was for the jury. In reaching the conclusions above stated, we have been aided by consulting the following authorities: 2 White's Pers.Inj. on R.R. § 880; Frick v. St. L. & S.F.R.R. Co., 75 Mo. 595, 8 Am. & Eng. R.R. Cases, 280; Illinois, etc., R.R. Co. v. Dick, 91 Ky. 434, 15 S.W. 665; Cleveland, etc., R. Co. v. Doerr, 41 Ill.App. 530; Lindfield v. Old Colony R.R. Co., 10 Cush. (Mass.) 564, 57 Am.Dec. 124; Beach on Contributory Negligence, § 194; Cooper v. Lake Shore Ry. Co., 66 Mich. 261, 33 N.W. 306, 11 Am.St.Rep. 482; Duame v. Chicago, etc., R. Co., 72 Wis. 523, 40 N.W. 394, 7 Am.St.Rep. 879; Fisher v. Monongahela, etc., R. Co., 131 Pa. 292, 18 A. 1016; Atchison, etc., R. Co. v. Morgan, 43 Kan. 1, 22 P. 995; O'Conner v. Mo. Pac. R. Co., 94 Mo. 150, 7 S.W. 106, 4 Am.St.Rep. 364; Chicago, etc., R. Co. v. Garvy, 58 Ill. 85.

The law exacts of railroad companies and their employés the exercise of a high degree of care in the operation of trains over public street crossings greatly frequented and used and where human life is likely to be imperiled. Under such circumstances, the law not only imposes the duty of observing the statutes of the state and ordinances of the city requiring signals to be given, but requires that a diligent lookout be kept, and if necessary to a safe operation of the train across the street that a flagman be placed at the crossing or a courier be sent ahead to warn those imperiled, or likely to be, of the approach of the train, and to operate the train at such rate of speed as to render the infliction of injury improbable. 4 Mayf.Dig. p. 295, §§ 18, 19, 21, and authorities there cited; A.G.S.R.R. Co. v. Guest, 136 Ala. 348, 34 So. 968; Id., 144 Ala. 379, 39 So. 654; L. & N.R.R. Co. v. Williams, 183 Ala. 138, 62 So. 679, Ann.Cas. 1915D, 483.

The application of the foregoing principles justified the refusal of charges 1, 2, 4, 5, D, and E requested by the defendant and if it be conceded that charge A asserts a correct proposition as applicable to the evidence, the same proposition was fully stated in the ex mero motu charge of the court, which is in accord with...