Atlantic Coast Line R. Co. v. Flowers

• Decision Date: 29 May 1941
• Docket Number: 3 Div. 344.
• Citation: 241 Ala. 446,3 So.2d 21
• Parties: ATLANTIC COAST LINE R. CO. et al. v. FLOWERS
• Court: Alabama Supreme Court

3 So.2d 21

241 Ala. 446

ATLANTIC COAST LINE R. CO. et al. v. FLOWERS

3 Div. 344.

Supreme Court of Alabama

May 29, 1941

Rehearing Denied June 30, 1941.

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

A.H. Arrington, of Montgomery, W.L. Lee and Alto V Lee, III, both of Dothan, and Evans Hinson, of Montgomery, for appellants.

Hill, Hill, Whiting & Rives, of Montgomery, and Jas. F. Giddens, of Troy, for appellee.

FOSTER, Justice.

Plaintiff's intestate was killed in a collision between a truck, which he was driving, and a train of appellant about 5:40 A.M November 8, 1939. At that time of the year, this was about the dawn of day. The headlights of both train and truck were on. It occurred at a public road crossing. The train was a fast heavy passenger train running north on a straight track back for about 1500 feet, at a speed of about 50 miles an hour. The truck was proceeding west on a level dirt road. At some 40 or 45 feet east of the railroad the dirt road has an angle, one fork extending north and one southeast. The truck had been parked for the night before on the part of the road extending north. Decedent backed it that morning to the angle, and then toward the southeast fork, to turn west to cross the railroad and of course stopped to make the change in its course. It did not stop again before attempting to cross, but proceeded for about 40 to 45 feet toward and onto the track, and was hit in front by the on-coming train.

The engineer testified that he was looking ahead and blew the station signal. This crossing was a flag stop. It was not a village, town or city, but a public road crossing, near a water mill and gin not used much at that time of day. The engineer testified the station signal was one long blow of the whistle given about 1500 feet away; that he then blew for the crossing, two long blows and a short and a long blow, but did not finish that signal for he then saw the headlight of an automobile approaching and coming toward the crossing, and he immediately changed to a cattle alarm. The automobile, traveling about 4 or 5 miles an hour, and the train was about 250 feet from the crossing, traveling at about 50 miles an hour. That as soon as he saw the headlight of the automobile, he threw on the emergency brakes and shut off speed (steam), and put sand on the rails, and blew the cattle alarm; and that was all that could have been done to stop the train or give an alarm: that the train was making much noise and was equipped with an electric headlight. The track was in a cut with a high embankment on the east, which was about 50 feet from the track: that there was a siding there over which the automobile passed; and south of the dirt road was a loading platform about 3 1/2 feet high with no cover and nothing else to obstruct the view down toward the approach of the train. No one saw the accident except the engineer.

One of plaintiff's witnesses, who lives near the scene, testified that he heard the roar and rumble of the train and heard the signal of two blows and then the impact of the collision. Another witness testified that the blow of the whistle and the crash were almost simultaneous, one followed the other instantly; that it was blowing what he thought was the crossing signal and went almost immediately into the cattle alarm. While another witness only heard two short whistles and then heard the crash immediately.

Photographs and maps were in the record and show a clear view down toward the on-coming train for a long distance, with no obstructions to such view after passing the embankment. The dirt road was apparently on a level with both tracks.

The action is in two counts for the death of J.C. Holley under the homicide statute. Code 1940, Tit. 7, § 123. Both counts charge simple negligence. This includes subsequent as well as primary negligence.

The plea was in short by consent with leave to give in evidence any special defense, the same as if specially pleaded. The defense not only was a denial of all negligence, but also contributory negligence as to both primary and subsequent negligence claims.

The complaint and plea put in issue the negligence of defendant, primary or subsequent, and the plea included such contributory negligence as was applicable to either. Heffelfinger v. Lane, 239 Ala. 659(3-4), 196 So. 720.

Under section 9955, Code of 1923, Code 1940, Tit. 48, § 173, the burden was on the railroad to show as a primary duty compliance with section 9952, Code of 1923, Code 1940, Tit. 48, § 170, and that there was no negligence on the part of the company. This section does not place on defendant the burden to prove its want of negligence subsequent to a discovery of the danger of intestate, until plaintiff has proven to the reasonable satisfaction of the jury that defendant after discovery of his perilous situation could by the exercise of due diligence have prevented the injury. Louisville & Nashville R.R. Co. v. Moran, 190 Ala. 108, 121, 66 So. 799(6); Smith v. Louisville & Nashville R.R. Co., 219 Ala. 676(8), 679, 123 So. 57; Johnson v. Louisville & Nashville R.R. Co., 227 Ala. 103(10), 148 So. 822.

The mere approach of intestate toward a railroad at a crossing at a speed of 5 or 6 miles an hour with no indication of the fact that the driver was not aware of the approaching train, it was held does not indicate that he is in position of peril. Bason v. Alabama G.S.R.R. Co., 179 Ala. 299(2), 60 So. 922. But if the traveler gives any indication of inattention or of unconsciousness of his surroundings, it has been said that the trainmen should take immediate action; but not if there is nothing to indicate that he is not possessed of his senses or conscious of his position. Illinois C.R. Co. v. Martin, 213 Ala. 617(4, 5), 105 So. 805; Mobile L. & R. Co. v. Gadik, 211 Ala. 582, 100 So. 837. This is illustrated when one is walking toward a track with his back toward the engine, apparently oblivious of the approach of the engine. Southern Ry. Co. v. Montgomery, 229 Ala. 456, (8), 157 So. 854.

And that unless the contrary is manifest, the trainmen could assume that the automobile driver would do his duty and stop and not attempt to cross in dangerous proximity to the approach of the train. DeBarbeleben v. Western Ry. of Alabama, 227 Ala. 553, 151 So. 56; Southern Ry. Co. v. Miller, 226 Ala. 366, 147 So. 149; Sloss-Sheffield S. & I. Co. v. Peinhardt, 240 Ala. 207, 199 So. 33. But that if the speed of the approaching car and its distance to travel are such as to manifest a probability that it will not stop or it is in apparent existing danger in that respect, the duty of trainmen then begins if by some warning or slackening of speed the collision may be averted. Johnson v. Louisville & Nashville R.R. Co., supra; Id., 240 Ala. 219, 198 So. 350.

If the automobile driver did not stop, look and listen before proceeding, his act was a breach of duty which rendered innocuous any primary failure of the trainmen as to giving signals. If he did not stop without going upon the track, if he could have done so after seeing the train and hearing its approach, in dangerous proximity, there was a breach of duty, known as subsequent contributory negligence, which prevents a recovery for any subsequent negligence of the trainmen existing theretofore. If their respective conduct after each discovered the imminence of the danger was so interwoven as to constitute but one unified act, there was no occasion for the principle of last clear chance, and no recovery was available. St. Louis S.W. Ry. Co. v. Simpson, 286 U.S. 346, 52 S.Ct. 520, 76 L.Ed. 1152. Southern Ry. Co. v. Miller, 226 Ala. 366, 147 So. 149; Johnson v. Louisville & Nashville R.R. Co., supra; Southern Ry. Co. v. Melton, 240 Ala. 244, 198 So. 588.

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