Atlantic Coast Line R. Co. v. Barganier

• Decision Date: 03 January 1952
• Docket Number: 6 Div. 167
• Citation: 61 So.2d 35,258 Ala. 94
• Parties: ATLANTIC COAST LINE R. CO. v. BARGANIER.
• Court: Alabama Supreme Court

Page 35

61 So.2d 35

258 Ala. 94

ATLANTIC COAST LINE R. CO. v. BARGANIER.

6 Div. 167.

Supreme Court of Alabama.

Jan. 3, 1952.

Rehearing Denied June 26, 1952.

Further Rehearing Denied Nov. 6, 1952.

Graham, Bibb, Wingo & Foster, Birmingham, for appellant.

Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.

BROWN, Justice.

The plaintiff, appellee here, sued the appellant Atlantic Coast Line Railroad Company, a corporation, its engineer Watts and its conductor Smith in charge of and operating its freight train, in trespass on the case for injury to his person and property,--a Chevrolet 1936 Model automobile,--averring as inducement that while the plaintiff was driving said automobile on August 9th, 1948, 'along a public highway, known as Midfield Road, which said public highway then and there crossed said railroad track at grade near Powderly, Alabama, the defendants ran said train against plaintiff's said automobile, and as a proximate consequence thereof plaintiff was injured and damaged as follows:

'His spinal column was broken and fractured; he suffered a concussion of the brain; he was injured internally; he was permanently injured, permanently scarred and permanently disfigured; his head, neck, shoulders, back, limbs, abdomen and other parts of his body were cut, lacerated, bruised, contused and otherwise injured; the muscles and ligaments of his back, arms, abdomen and other parts of his body were sprained, strained, torn, twisted, wrenched and otherwise injured; his nervous system was greatly shocked and impaired, was permanently shocked and impaired; he was rendered unconscious for a long period of time; he was confined to the hospital, to the bed and to the house for a long period of time; he was caused to suffer great physical pain and great mental anguish; he was made sick, sore and ill for a long period of time; he was prevented from engaging in his customary employment for a long period of time, and was caused to lose the remuneration which he would otherwise have received therefor; he was rendered permanently less able to work and earn money, and his ability to work and earn money was greatly impaired; he was put to great trouble, great loss of time and great expense in and about procuring medical and hospital care, medicines, and medical supplies and services in and about an effort to heal and cure his said wounds and injuries; and the body, motor, chassis, wheels, tires and other parts of his said automobile were broken, bent, mashed, torn, twisted and otherwise damaged, and his said automobile was rendered less valuable.

'And plaintiff avers that all of his said injuries and damages were caused as a proximate result of the negligence of the defendants in and about the operation of said railroad train at said time and place.'

The second count adopted the first count down to and including the cataloguing of damages claimed and averred that said injuries and damages were proximately caused by defendants' wanton conduct in running its said locomotive against the plaintiff's automobile on said crossing.

The defendants pleaded to both counts the general issue, in short by consent, with leave to offer in evidence any fact or facts which if specially pleaded would constitute a defense to the counts of the complaint or either of them.

While Mr. Bibb, counsel for the defendant, was making the closing argument for the defendant and about the time he was concluding said argument, the plaintiff offered an amendment to his complaint by striking Smith as a party defendant and by adding the following averments, as to the damages claimed: "2. By adding at the beginning of the second paragraph of Count 1 thereof, the following words: 'He was so injured about the body that his sexual capacity was impaired and he was rendered unable to engage in sexual inter-course; his bladder was injured and impaired, and his hearing was impaired."'

As soon as the amendment embodying the claim above italicized came to the attention of defendants' counsel, he objected to said added claim on grounds, among others, that it came too late; that it was not supported by the testimony of medical witnesses; that defendants were deprived of the right to cross-examine witnesses on said subject; that defendants were deprived of the right to offer countervailing evidence and to argue the same to the jury. The court overruled the objections and allowed said amendment and the defendants separately excepted. The record shows that said amendment was proposed after Mr. Foster, one of the defendants' counsel, had presented request for charging the jury in writing, that damages for loss of sexual capacity could not be awarded because the same were 'special damages', not claimed.

The trial resulted in a verdict acquitting the engineer and assessing the damages in favor of the plaintiff against the railroad company for $60,000 followed by a judgment of the court on said verdict.

On the hearing of the motion for a new trial duly filed, the plaintiff, to avoid the granting of the motion, at the suggestion of the trial court filed a remittitur, reducing the amount of the damages to $42,500 and the motion for a new trial was overruled. The defendant railroad company duly excepted.

One of the contested issues, left for jury decision, was whether or not under the evidence the plaintiff observed the duty imposed on him by law to stop, look and listen before attempting to cross the railroad track. On that subject, in connection with the oral charge, the court gave the following special written charges.

'Charge No. 14. The Court charges the jury that one who is about to cross a railroad track must stop so near to the track and survey by sight and sound must so immediately precede his effort to cross over it as to preclude injection of an element of danger from an approaching train into the situation between the time he stopped, looked and listened and his attempt to proceed across the track.

'Charge No. 15. The Court charges the jury that under the law it is the duty of a person intending to cross a railroad track to stop, look and listen for approaching trains, and this use of the senses must be made within such nearness to the track and under such circumstances as will afford the traveller the knowledge whether or not he can cross the track with reasonable safety from collision with an approaching train. And the Court further charges you that this duty is a continuing one to the extent of excluding the injection of an element of danger in his attempt to cross between the time he last stopped, looked and listened, if he did so, and the time he entered the zone of danger made by trains entering the crossing.

'Charge No. 25. The Court charges the jury that a failure of the defendant's servants or agents to sound the whistle or ring the bell, if such were the fact, in approaching the crossing at which the collision complained of occurred did not relieve the plaintiff, Calvin F. Barganier, of the duty of stopping his vehicle and looking and listening for approaching trains before attempting to cross the railroad tracks.

'Charge No. 29. The Court charges the jury that if you are reasonably satisfied from the evidence that there were obstructions which interfered with the plaintiff's view of the railroad track as he approached within one hundred feet of the railroad crossing on the occasion complained of, then it was the plaintiff's duty, in the exercise of reasonable care for his own safety, to stop and to look and to listen for approaching trains at a point where he could best see and hear an oncoming train before undertaking to cross the railroad track.

'Charge No. Y. I charge you gentlemen of the jury that before entering upon the crossing Mr. Barganier was under the duty of using reasonable care in listening to determine whether or not any train was approaching the crossing.

'Charge No. 20. The Court charges the jury that the engineer or other person in charge of the train approaching the public road crossing at which the collision complained of occurred was not required to blow the whistle continuously or to ring the bell continuously but that the duty imposed on him by law was that at short intervals commencing one-quarter of a mile before reaching the crossing either the whistle be blown or the bell be rung, one of the other.'

The evidence shows that while plaintiff was driving his Chevrolet automobile on the Midfield Road leading from the old Bessemer Highway across to the new Super Bessemer Highway, proceeding in a northwesterly direction between six and seven o'clock on the morning of August 9, 1948, the defendant's locomotive pulling a freight train being operated by the defendant Watts collided with said automobile just as the front wheels of the automobile reached the northwestern rail of the single line railroad track and threw the automobile to the northwestern side of the railroad against the cross-arm sign post standing on the northwestern corner of the intersection, causing said cross-arm post to lean slightly to the northwest. The locomotive contacted the right rear wheel and fender of the automobile, wrecking the same and injuring plaintiff, who was caught and pinned in some way under the running board with his feet extending to the front part of the tonneau of the automobile.

No one saw the collision except the plaintiff, the fireman and the engineer operating the train and there was no other vehicle or person in sight of the crossing at the time of the collision. The fireman's testimony, which was without dispute, was that as the train approached the crossing, he was keeping such lookout ahead as was consistent with his duties to fire the engine with coal and supply the boiler with water by operating the injector, and just before the front of the locomotive reached the crossing he saw the automobile, to use his words, 'flash upon the crossing out of nowhere' and he hollered to the engineer 'car' and...