Atlantic Coast Line R. Co. v. Carter

• Citation: 214 Ala. 252,107 So. 218
• Decision Date: 21 January 1926
• Docket Number: 3 Div. 732
• Parties: ATLANTIC COAST LINE R. CO. v. CARTER.
• Court: Supreme Court of Alabama

107 So. 218

214 Ala. 252

ATLANTIC COAST LINE R. CO. v. CARTER.

3 Div. 732

Supreme Court of Alabama

January 21, 1926

Application for Rehearing Withdrawn February 23, 1926

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages for wrongful death by Julia E. Carter, as administratrix of the estate of William Carter, deceased against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Arrington & Arrington, of Montgomery, for appellant.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

SAYRE J.

Plaintiff's (appellee's) intestate was killed at a road crossing by a locomotive running on defendant's railroad. The crossing was in the midst of a 3,000-acre plantation. It was prepared--no doubt, by the defendant company--as a substitute for another crossing at a different place under and in substantial agreement with the provisions of a contract in writing, into which the defendant company and the landowner entered in 1916, by the terms of which the company granted to the owner, W.M. Teague, "the right or license of placing a private road crossing across its track and right of way" in consideration whereof Teague, "for convenience styled the licensee," covenanted:

"First. That the licensee will not allow any other person or persons to use the said crossing except with the consent in writing of the railroad company.

"Second. That said crossing shall be placed and maintained at the cost and expense of the licensee, but in a manner and of the materials satisfactory to the engineer of roadway of the said railroad company.

"Third. That the licensee shall and will hold harmless the said railroad company, its successors and assigns, from and against all loss, damages, claims, and demands caused in any manner by the placing of said crossing.

"Fourth. That the licensee will vacate said premises and remove said crossing at any time at the will of the railroad company upon thirty (30) days' written notice given to the licensee, and restore the said track and right of way to their original condition, but at the expense of the licensee."

Plaintiff's intestate was Teague's superintendent and had occasion to use the crossing in going about his business. At all other points in the vicinity of the crossing defendant's railroad was guarded by wire fences standing along the east and west margins of its right of way. A plantation road led from a public road on the east by way of the crossing to the barn, and thence to the western boundary of Teague's land, where it connected with other plantation roads which led out to another public road some miles to the west. Tenants lived about on the plantation, and they, of course, used the crossing at will. The neighbors, too, used it when it best served their convenience.

Whether because the proprietor's license included tenants and employees on his plantation--as doubtless it did--or because, apart from the contract, any one, having the right to cross the track of a railroad, may cross whenever and wherever he may have occasion to be on the other side, provided he has the assurance of his senses, properly exercised, that it is safe to do so (Glass v. Railroad, 10 So. 215, 94 Ala. 587), plaintiff's intestate had the right to cross when and where he undertook to do so. But this does not determine the case in plaintiff's favor. Other considerations must be taken into account.

There is no charge of intentional wrong or wanton injury. Nor is it alleged or contended that defendant's servant or agent in charge of its locomotive was guilty of negligence after discovering intestate's peril. The pivotal question, then, is whether there rested upon defendant's engineer the duty to keep a lookout for persons using the crossing. That duty was not imposed by reason of any inclusive contiguity of village, town, or city, as in the Glass Case. There was no such contiguity. Nor does the evidence appearing in the record suffice to establish such constant and long-continued use, known to defendant, as in reason to charge it with the duty of keeping a lookout for persons at the crossing in question; in other words, to confer upon it the characteristics of a crossing public in fact. By contract and by usage it was a private crossing. It may be freely conceded that it was maintained by defendant, though the evidence shows nothing more than such maintenance as resulted incidentally from defendant's efforts to keep its track and right of way in condition. But the evidence, fairly construed, affords no reasonable basis for the inference of an invitation to the general public to cross at that place. Defendant did nothing to hold the crossing out to the public as a suitable place to cross; on the contrary, its contract with the landowner definitely excluded the idea of public right. The landowner's covenant was that he would not "allow any other person or persons to use the said crossing," and, as for the fact that it was in limited use by others, the authorities seem to hold that "neither sufferance, nor permission, nor passive acquiescence is equivalent to an invitation." Elliott on Railroads (3d Ed.) § 1647. This is not to deny that by long-continued use by a large number of people, of such notoriety as in reason to charge the company with knowledge, a railroad company may be brought under duty to maintain a lookout where otherwise there would be no such duty. We have cases recognizing the fact that a duty may be imposed in that way. A.G.S. v. Snodgrass, 79 So. 125, 201 Ala. 653. But that is not this case.

The general public had no interest in the crossing. Intestate had a right to cross; but, assuming that the contract was for his benefit along with the landowner, it is not perceived that his privilege was in the least enlarged thereby, and it seems that the only additional privilege Teague acquired was the privilege of paying for the placement and maintenance of the new crossing. Intestate was not a trespasser. Under the decisions of this court he was a licensee. In the circumstances shown by the record it was not incumbent upon defendant or its employees to know his presence on the track or to keep any especial lookout for him. Their only duty was to use due diligence--the highest degree of diligence--to avoid injuring him after becoming aware of his presence and peril. A.G.S. v. Linn, 15 So. 508, 103 Ala. 134; Walker v. Railroad, 70 So. 125, 194 Ala. 360; A.G.S. v. Fulton, 39 So. 282, 144 Ala. 332; L. & N. v. Jenkins, 72 So. 68, 196 Ala. 136.

We have stated the rule as it appears in the decisions of this court. The same rule is supported by the...