Atlantic Coast Line R. Co. v. Jackson, 4 Div. 502.

• Decision Date: 23 October 1930
• Docket Number: 4 Div. 502.
• Parties: ALTANTIC COAST LINE R. CO. v. JACKSON.
• Court: Alabama Supreme Court

130 So. 388

221 Ala. 646

ALTANTIC COAST LINE R. CO. v. JACKSON.

4 Div. 502.

Supreme Court of Alabama

October 23, 1930

Appeal from Circuit Court, Dale County; J. S. Williams, Judge.

Action for damages by Judge Jackson against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals.

Transferred from the Court of Appeals.

Reversed and remanded.

A. H Arrington, of Montgomery, for appellant.

Sollie & Sollie, of Ozark, for appellee.

BOULDIN J.

The action is for damages to plaintiff's truck and load of hay, resulting from a collision with a locomotive of defendant at a road crossing.

Evidence tended to show that the truck "stalled" as it was passing over the railroad crossing, and came to a stop on the crossing.

For some minutes efforts were directed to clearing the crossing but before this was accomplished a locomotive of defendant drawing a train of cars ran upon and demolished the truck.

Whether this was a public road crossing was an issue submitted to the jury upon evidence of public use for the prescriptive period. No evidence tended to show it was a populous or much-frequented road and crossing. It was no more than a neighborhood road, used by the public as occasion required.

The crossing was on a straight track. There was a curve and cut in the direction from which the train approached. The distance from which the enginemen could first see an obstruction at the crossing, as well as the preventive effort used after coming in sight, were in dispute.

Defendant's evidence tended to show that the engineer saw the truck as soon as he rounded the curve to where the crossing came into view, and immediately put on emergency brakes, sanded the track, and did everything a competent engineer could do to bring it to a stop; that the train was well equipped; and that, despite all efforts, the locomotive, running some 30 miles per hour, drawing 22 cars, and on a down grade, ran on over the crossing, colliding with the truck.

There is but one assignment of error. This is directed to a portion of the oral charge of the trial court. That we may consider same in the light of briefs, pro and con, we set out such instruction, with its setting.

The record shows that in course of his oral charge, the court said: "Now, if it was a public road then a certain duty rests upon the railroad company must approach that crossing at such a rate of speed,-it must have its cars properly equipped, and the engine, and then they must approach that crossing with their train so under control as that they may be able to stop that train within the vision of an object at that crossing."

At the close of the charge, the record reads:

"Mr. Arrington: I understood you to say that the train must approach a crossing at a speed which will enable it to stop before reaching an object coming within its vision,-that's what I understood you to say.

"The Court; Well, if I said that, I will eliminate that statement from the jury.

"Judge Sollie approaches the Court with respect to some charge he was about to request given.

"The Court: This is the law, gentlemen:

"'Enginemen may be negligent in approaching crossing at such rate of speed that train could not be stopped in time to avoid injury to traveller at crossing, the crossing is not within Code 1907, No. 5473, as to rate of speed in approaching crossing on curve where engineer cannot see one quarter of mile ahead.'

"The defendant reserves an exception to the above passage read by the Court."

Since East Tenn., Va. & Ga. R. R. Co. v. Deaver, 79 Ala. 216, it has been the declared law of Alabama that, in the absence of statute or ordinance, it is not negligence per se for trainmen to approach and pass a crossing at such speed that an obstruction at the crossing cannot be seen at stopping distance. No rate of speed, reasonably necessary to the purposes of rapid transportation of freight and passengers, and to make connections, amounts to negligence per se. Rothrock v. A. G. S. R. Co., 201 Ala. 308, 78 So. 84.

Our statute requires showing down only at one class of crossings-a crossing on a curve where the trainmen cannot...