Bason v. Alabama Great Southern R. Co.

• Decision Date: 21 December 1912
• Citation: 179 Ala. 299,60 So. 922
• Parties: BASON v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

60 So. 922

179 Ala. 299

BASON v. ALABAMA GREAT SOUTHERN R. CO.

Supreme Court of Alabama

December 21, 1912

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by W. H. Bason against the Alabama Great Southern Railroad for damages for being struck while crossing defendant's railroad. Judgment for defendant, and plaintiff appeals. Affirmed.

The first count was in simple negligence, and alleges that plaintiff was injured while crossing defendant's railroad track in an automobile; and that the agents and servants of defendant, while acting within the line and scope of their employment, negligently ran a freight engine upon or against an automobile in which plaintiff was riding, whereby, and as a proximate consequence of such negligence, the automobile was injured in the sum of $1,000, and plaintiff suffered physical injuries, which are alleged.

The second count is the same as the first, except it claims for wanton and willful injury. It does not appear that there was a count for subsequent negligence.

The sixth plea avers that the plaintiff would not have sustained the damages complained of but for the negligence of the plaintiff himself, which negligence proximately contributed to his damages and consisted in this: That he was driving an automobile upon a public road, which crosses the track of this defendant, and while so driving ran his automobile up to or upon the tracks of this defendant, when he knew, or by the exercise of reasonable diligence should have known, that a train on the track of this defendant was approaching said crossing, and in dangerous proximity thereto.

The tendencies of the evidence were that a train was running from Argo to Birmingham, going north on defendant's line, and at the crossing at Argo struck the front part of the automobile in which plaintiff and certain other persons were riding; that the automobile was being run by plaintiff, had just come down a long hill, and was climbing the grade approaching the railroad track on the power acquired in coming down the hill, and was stopped with the front wheels at or very near the ends of the ties on the railroad tracks that the situation was such, on account of the curves and the breaks in the ground, that the trainmen could not see the crossing more than 150 feet away, and one approaching the crossing could not see a train more than 15 or 20 feet away from the crossing; that the automobile approached the crossing at a speed of from 4 to 5 miles an hour, and was not stopped until it was observed that the train was in close proximity to them, and was stopped then just about a foot or 18 inches from the rails; that the train was running about 30 miles an hour, and hit the automobile and tore off the front end. The evidence showed the crossing to be an ordinary public road crossing in the country.

Percy Benners & Burr, of Birmingham, for appellant.

A. G. &amp E. D. Smith, of Birmingham, for appellee.

ANDERSON J.

There was no evidence to support the willful or wanton counts of the complaint, as the crossing in question was not shown to be such a populous one as...