Birmingham Ry., Light & Power Co. v. Saxon

• Decision Date: 18 April 1912
• Citation: 59 So. 584,179 Ala. 136
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. SAXON.
• Court: Alabama Supreme Court

59 So. 584

179 Ala. 136

BIRMINGHAM RY., LIGHT & POWER CO. v. SAXON.

Supreme Court of Alabama

April 18, 1912

On Rehearing, June 29, 1912.

On Rehearing.

Appeal from Circuit Court, Jefferson County; E. C. Crow, Judge.

Action by W. D. Saxon, as administrator, against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Count 3 is in subsequent negligence for a negligent failure of the servants of the defendant to use all means at their command to prevent the car from running against plaintiff's intestate after becoming aware of his peril, when, by the use of such means, the accident might have been avoided. The plaintiff's intestate was crossing the track at a public crossing, as alleged in count 3, when he was struck and killed.

Plea 5 is as follows: "Defendant says that plaintiff's intestate voluntarily left a place of safety by the side of defendant's track at said crossing, and from which position by the said side of the track, at the said crossing his view of the approaching car was unobstructed, and, well knowing that defendant's car was rapidly approaching, he measured the distance and took the chances of crossing the track before the car reached him, and attempted to cross said track immediately in front of the moving car, and in such close proximity thereto that no preventive effort on the part of defendant's employés in charge of said car could have prevented injury to him, and by his own gross and reckless negligence and wanton conduct in this regard he proximately contributed to the injury and death."

(6) "Defendant says that plaintiff's intestate was himself guilty of negligence which proximately contributed to his injury and death, which negligence consisted in this: The plaintiff's intestate attempted to cross the said track in front of defendant's moving car without looking and listening for the approach of a car, and well knowing that said car was approaching, and in such close proximity that no preventive effort on the part of the employés or servants in charge of said car could have prevented the injury after the peril of plaintiff's intestate became known to them, or after he stepped on the track on which said car was moving."

(N) "The defendant says that plaintiff's intestate was himself guilty of negligence which proximately contributed to his injury and death in this: That said intestate went upon or dangerously near, or attempted to cross, the railway track of defendant in front of and in dangerous proximity to an electric car, which was then and there approaching on said track, without looking for said car."

(11) "The defendant says that plaintiff's intestate was himself guilty of negligence which proximately contributed to his alleged death in this: Said intestate, after having looked for defendant's said car, and having seen the same then and there approaching on said track, nevertheless negligently went upon or dangerously near said track in front of and in dangerous proximity to said car, which was then and there approaching on said track."

(12) "Defendant says that plaintiff's intestate was himself guilty of negligence which proximately contributed to his alleged death in this: Said intestate went upon or dangerously near, or attempted to cross, the railway track of defendant in front of, and in dangerous proximity to an electric car, which was then and there approaching on said track, and negligently failed to listen for said car before doing same."

(13) Same as 12.

(14) "Defendant says that plaintiff's intestate was himself guilty of negligence which proximately contributed to his alleged death in this: Said intestate approached said track, for the purpose of crossing it, at the point at which he was struck by said car, and before going upon said track for such purpose did not stop and look for said car, and at the time that intestate voluntarily went upon said track said car was approaching said point, and said intestate could have seen said car in time to have avoided being struck by it, had he stopped and looked for it before going upon said track."

(15) "Contributory negligence in this: Plaintiff's intestate negligently attempted to cross the track of the defendant, aforesaid, without looking or listening for the approach of the said car of the defendant, then and there approaching on said track in dangerous proximity to him; and defendant avers that the plaintiff's intestate thus negligently attempted to cross the track of the defendant, as aforesaid, with knowledge of the danger of so doing, and well knowing that to so cross the said tracks, as aforesaid, would imperil and endanger his life by collision with an approaching car."

(16) "Contributory negligence, in that defendant says that with knowledge that said car was approaching the point on said track at which it struck said intestate, and would probably pass said point before said intestate could get entirely across said track, the said intestate voluntarily undertook to cross said track at said point, and was injured and killed by being struck by said car at said point before he had entirely crossed said track; said intestate having attempted to cross said track without having informed said servants or agents of his purpose to do so, and without having been assured by them that it would be safe for him to do so."

(A) "Contributory negligence in this: Said intestate having seen the defendant's car which struck him approaching the point at which he was struck by it at a high rate of speed and knowing that it was probable that said car would continue to run at said speed while passing over the point at which said intestate was struck, nevertheless negligently ran in front of said car at said point, while the same was approaching said point, at said high rate of speed, and was in dangerous proximity to said point, knowing that it was probable that he would not have time to go across defendant's track at said point before being struck by said car, unless the speed thereof was reduced before said car reached said point, and without any assurance that its speed would be reduced before it reached said point."

(B) "Contributory negligence in this: After the said servant of the defendant became aware of said intestate's peril of being run against by said car, said intestate, well knowing that said car was approaching the point at which he was struck by it at a rapid rate of speed, and without any assurance that its speed would be reduced before passing said point, negligently attempted to cross said track on which said car was being run at said point, when said car was in dangerous proximity to said point, and was being run at such high rate of speed, and was killed while making said attempt."

(C) "Contributory negligence in this: After the said agents or servants became aware of said intestate's peril of being run against by said car, the said intestate saw the said car approaching at a high rate of speed the point on track of defendant at which he was struck by it, and in dangerous proximity thereto, and thereafter, knowing that it was probable that it would be impossible for him to cross said track before said car reached said point, unless the speed thereof was reduced, and without any assurance that the speed of said car would be reduced before reaching said point, and fully appreciating his peril, said intestate negligently attempted to cross said track at such point, and was struck by said car while making such attempt."

(D) "Contributory negligence in this: After said agents or servants became aware of said intestate's peril of being run against by said car, the said intestate became aware that said car was approaching at a high rate of speed the point on said track at which he was struck by it, and would probably pass said point before he could cross said track at said point, he being on said track near one side thereof, and said intestate negligently failed to get off of said track at said side, as he might have done by the exercise of reasonable care and prudence, and thereby avoided being struck by said car, but negligently attempted to cross to the other side of said track, and was struck by said car while making such attempt."

(E) "Contributory negligence in this: After said agents and servants in charge of said car became aware of said intestate's peril of being run against by said car, said intestate went upon and attempted to cross said track on which said car was being run, without stopping and looking for cars which might be approaching the point on said track at which he went upon and attempted to cross the same, as aforesaid."

(G) "Contributory negligence in this: After the said agents and servants of the defendant became aware of said intestate's peril of being run against by said car, said intestate saw said car approaching at a high rate of speed the point on the track of defendant at which he was struck by it, and in dangerous proximity to it, and thereafter, knowing that it was highly probable that it would be impossible for him to cross said track before the said car passed the point at which he was struck by it, and that it was highly probable that the speed of said car could not be sufficiently reduced to prevent its passing said point before he could cross said track at said point, and without any assurance that its speed would be reduced sufficiently to enable him to cross said track at said point in safety, said intestate negligently attempted to cross said track at said point, appreciating the danger of doing so as fully and well as said servants and agents appreciated the same, and said intestate was struck by said car while so attempting to cross said track."

The exceptions to evidence sufficiently appear from the opinion....