Atlantic Coast Line R. Co. v. Jones

• Decision Date: 20 June 1918
• Docket Number: 3 Div. 359
• Citation: 80 So. 44,202 Ala. 222
• Parties: ATLANTIC COAST LINE R. CO. v. JONES.
• Court: Alabama Supreme Court

80 So. 44

202 Ala. 222

ATLANTIC COAST LINE R. CO. v. JONES.

3 Div. 359

Supreme Court of Alabama

June 20, 1918

Rehearing Denied Nov. 14, 1918

Certiorari to Court of Appeals.

Action by D.W. Jones against the Atlantic Coast Line Railroad Company. There was a judgment for plaintiff which was affirmed by the Court of Appeals (78 So. 645), and the defendant petitions for certiorari. Writ granted.

Mayfield Gardner, and Thomas, JJ., dissenting.

The oral charge of the court is as follows:

"If you were out in the country and came across a regular highway, and you came across a railroad track, it would be your duty there to stop, look, and listen to see if you were going to be struck by a train coming along that track--there is a duty. And so it is in towns where the party knows that cars are frequently crossing. If there is a railroad train going up and down, and you are liable to be hit at any time, then it is your duty to stop, look, and listen. If this street down here had cars frequently shunting back and forth, and the plaintiff knew that there was a danger there, then it would be his duty to stop, look, and listen; but if the track was infrequently used or used just occasionally, and he was not aware of its being a dangerous crossing, then it would not be his duty in every event to stop, look, and listen, but he must use ordinary care approaching the track that an ordinary prudent person must use. In other words, if you knew a railroad track going across one of these streets, and you happen to know that that track has not been used for 40 years, just because there is a track there you are under no duty to stop before you cross the track and look up and down because you know it is a mere track; but, if you know every two or three minutes or seconds there would be a train running up and down, it would be your duty. So, if you find that this was a dangerous crossing which was used by the railroad company in shunting its cars at this place, it would be your duty to stop, look, and listen; but if infrequently used and not a dangerous place then the duty upon the plaintiff would be to use ordinary care, or the care that a reasonably prudent man would use under the circumstances. Now if you find that this is an infrequently used track, and not a dangerous track or place and you find that he approached it as an ordinarily prudent person would do under the same circumstances, and used ordinary care, then he would not be guilty of contributory negligence. But if you find that he failed to stop, look, and listen, and it was a dangerous track and frequently used then he would be guilty of contributory negligence."

John R. Tyson, of Montgomery, for appellant.

Hill, Hill, Whiting & Thomas and W.R. Cooper, all of Montgomery, for appellee.

ANDERSON C.J.

It is well settled by a long line of decisions by this court that a person attempting to cross a railroad track on which cars and locomotives are liable to be moving must stop, look in both directions, and listen before going on the track. Cen. of Ga. v. Barnett, 151 Ala. 407, 44 So. 392; Cen. of Ga. v. Foshee, 125 Ala. 199, 27 So. 1006; L. & N.R.R. Co. v. Calvert, 172 Ala. 597, 55 So. 812; and many cases collected in section 139, vol. 11, Encyclopedic Digest, p. 345.

"That it is the duty of a person approaching the track of a railway for the purpose of crossing it to stop, and to look, and to listen, if need be--that is, if the exercise of the sense of sight does not suffice to fully disclose the situation for approaching trains--and that the omission of this duty, followed by injury in collision with a train locomotive, or car while attempting thus heedlessly to cross over the track, is as matter of law negligence on the part of the traveler so contributing to the result as to defeat his

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