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

• Decision Date: 21 November 1907
• Citation: 45 So. 177,153 Ala. 157
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. JONES.
• Court: Alabama Supreme Court

45 So. 177

153 Ala. 157

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

Supreme Court of Alabama

November 21, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Annie May Jones, by her next friend, against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tillman Grubb, Bradley & Morrow, for appellant.

John W Tomlinson, for appellee.

DENSON J.

Third avenue, sometimes called "Georgia Avenue," is a public street in the city of Woodlawn; its course being east and west. Along this avenue the defendant has constructed and operates a street railway by permission of the municipality. The width of the avenue does not appear from the evidence but it does appear that the defendant's roadbed and track are located on the south side of it, the track being only about 10 feet from the property line on that side. The ties are laid on the surface of the earth, and the rails are laid on them. In other words, the railway is not so constructed as to become a part of the avenue, suitable for being traveled along or over with vehicles; but the evidence tends to show that pedestrians frequently pass along it. The travel in vehicles is confined to that part of the street which lies north of the railway. Sixty-Fifth and Sixty-Sixth streets, two other public thoroughfares in Woodlawn, intersect Third avenue, and consequently defendant's railway. At the Sixty-Fifth street crossing the defendant's cars make regular stops to take on or put off passengers, but do not make such stops at the Sixty-Sixth street crossing, which is east of Sixty-Fifth, and nearer to Gate City. The injury complained of in this case was inflicted on the plaintiff, an infant only 16 months old, while she was sitting on the end of a cross-tie, or between the ends of two cross-ties, on the defendant's railway at a point between the two crossings mentioned, by one of defendant's electric cars going east, at about 2 o'clock in the afternoon of a bright day. The fender of the car struck the child on her head, causing a very serious injury. The accident occurred about 50 yards or steps east from the Sixty-Fifth street crossing, and the evidence tends to show that it was immediately in front of the dwelling of the parents of the plaintiff, which was located at the corner of Third avenue and Sixty-Sixth street and on the north side of the avenue. Plaintiff's mother had dressed her in a white garment and put her in the charge of an older child, on the veranda, and had gone into the house to attend to domestic duties. The older child, it seems, either left the baby or did not control her, and she crawled (she could not walk), out into the avenue and onto the track, and was in the position above indicated when she was struck by the passing car. The track is straight from Sixty-Fifth street to and even beyond the point where the accident occurred, and there were no obstructions to prevent a motorman, occupying the proper place on the car, while operating the car, from seeing an obstruction at that point from Sixty-Fifth street; and the evidence warrants the conclusion that, if the motorman had been maintaining a lookout ahead, he would have discovered the plaintiff in time to prevent the injury. The evidence tended to show that the motorman was on the front platform of the car, but did not positively show what he was doing before the accident occurred. However, witness Lankston testified that he (witness) was sitting on the rear seat of the car (on the side of the track on which the child was struck), looking out of the window at his left; that he saw an object on the track about 25 or 30 feet ahead of the car, but did not realize it was a child until the car was something like 10 or 15 feet from it, and at that time the "current was thrown on to stop the car" (he felt it); that the child was sitting with her face towards the car, and the rear end of the car was 6 or 8 feet beyond the point where the child was struck when the car stopped. Witness J. H. Woods testified that he was sitting on the second seat from the front, on the left side of the car (the side of the track the child was on when injured), and saw the child when the car was 25 or 30 feet from her; that after he saw the child he could not tell the exact moment the brakes were applied, but that "it looked like" they stopped the car as soon as they could get it under control; that when he first saw the child in front of the car he did not immediately feel the brakes being put on, but that "some time elapsed" before that was done; that the car was not going very fast, on account of the fact that it had stopped at Sixty-Fifth street, fifty yards from the place of the accident. He testified further, that "everything was excited--that he himself was excited, and that he could not say how long it was from the moment he saw the child until the brakes were applied, but that it was some little interval." The evidence also affords an inference that the car could have been suddenly stopped. The defendant offered no evidence in respect to the accident--gave no explanation of it whatever. From a judgment in favor of the plaintiff for $2,400, the defendant took this appeal.

There are many grounds in the assignment of errors, but they all converge at two points; the main question here presented for determination being whether or not the motorman owed plaintiff the duty, under the circumstances, to keep a lookout ahead for her. The court, in its oral charge, among other things, instructed the jury as follows: "If the jury should find from the evidence that at and before the time of the accident the defendant's motorman was not keeping a proper and diligent lookout, and if the jury find that the accident occurred within the limits of an incorporated town, the motorman would be guilty of negligence; and if the jury further find from the evidence that such negligence was the proximate cause of the injuries alleged to have been inflicted on the plaintiff then the plaintiff would be entitled to recover." The defendant reserved an exception to this charge, and here challenges its correctness. The argument of appellant's counsel against the charge proceeds upon the theory that the plaintiff was a trespasser on the defendant's track at the time the injury occurred, and that, notwithstanding the evidence affords a just inference that the motorman, had he been keeping a lookout ahead, would have discovered plaintiff in time to avoid injuring her, yet on account of plaintiff's being a trespasser he owed her no such duty. As a general proposition it must be conceded that a railroad company owes to a trespasser no duty to keep a lookout for him. It must also be conceded that this doctrine, according to our own decisions and to the weight of authority elsewhere, applies with equal force to adults and infants, except in cases where infants are enticed upon the track. N., C. & St. L. Ry. v. Harris, 142 Ala. 249, 37 So. 794, 110 Am. St. Rep. 29; Chambers' Case, 143 Ala. 255, 39 So. 170; Highland, etc., Co. v. Robbins, 124 Ala. 113, 27 So. 422, 82 Am. St. Rep. 153, and cases there referred to; Moorer's Case, 116 Ala. 642, 22 So. 900; Jefferson's Case, 116 Ala. 294, 22 So. 546, 38 L. R. A. 458, 67 Am. St. Rep. 116; Bush's Case, 122 Ala. 470, 26 So. 168; L. S., etc., R. Co. v. Clark, 41 Ill.App. 343; Morrisey's Case, 126 Mass. 377, 30 Am. Rep. 686; Williams' Case, 69 Miss. 631, 12 So. 957; Crystal's Case, 105 N.Y. 164, 11 N.E. 380; Foley's Case, 78 Hun, 248, 28 N.Y.S. 816; Goodman's Case, 116 Ky. 900, 77 S.W. 174, 63 L. R. A. 657; Parish's Case, 102 Ga. 285, 29 S.E. 715, 40 L. R. A. 364; McMullen's Case, 132 Pa. 107, 19 A. 27, 19 Am. St. Rep. 591; Woodruff's Case (C. C.) 47 F. 689; 3 Elliott on Railroads, §§ 1255, 1257, 1259. It must be further conceded that, in the case of Glass v. M. & C. R. R. Co., 94 Ala. 581, 10 So. 215, this court has said: "This doctrine applies as well to densely populated neighborhoods in the country, and the streets of a town or city, as to the solitudes of the plains or forests, with this exception: Where a railway is built in a street or public road, in such way as to be incorporated with and to become a part of the roadbed of the street or road, as where the ties and rails of the railway are imbedded in the street or road, so that, as nearly as practicable, the top of the rail is visible and at the same level as the surface of the roadway--a manner of construction illustrated in what are known as street railways--where, in other words, it is manifest that the railway is intended to be, and to be used as, a part of the street or road in which it is embodied, the public has not only the right to cross it, but also the right to pass along and use it as any other part of the street or road, being careful to look for and avoid approaching trains or cars; and in view of this right in the public, operatives of trains and cars on such railway are under a duty to keep a lookout for persons exercising it. But where the railway is not thus incorporated with the street or road, the public has no more right to use it than if it were not in a street or road at all."

It must further be conceded that the manner of construction of the track in the present case does not bring it within the exception stated in the Glass Case. Further, the plaintiff was not walking along the track, nor attempting to cross it. She was sitting or lying on it. The case of South. & N R. R. Co. v. Donovan, 84 Ala. 141, 4 So. 142, was one in which an infant was injured by the railroad while he was walking across the track within the limits of the city of Birmingham, and the railroad insisted that it was under no duty to keep a lookout for him,...