Birmingham Southern R. Co. v. Fox

• Decision Date: 26 February 1910
• Citation: 52 So. 889,167 Ala. 281
• Parties: BIRMINGHAM SOUTHERN R. CO. v. FOX.
• Court: Alabama Supreme Court

52 So. 889

167 Ala. 281

BIRMINGHAM SOUTHERN R. CO. v. FOX.

Supreme Court of Alabama

February 26, 1910

Rehearing Denied June 30, 1910.

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action for personal injuries by Cassie Fox against the Birmingham Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Percy Benners & Burr, for appellant.

Bowman Harsh & Beddow, for appellee.

MAYFIELD J.

Appellee's intestate was killed by a train or locomotive engine of appellant's, while he was walking along its track. Intestate, on seeing the approaching train and his danger attempted to leave the track by climbing a steep bank of ashes or coke braize, which refuse matter is left from the manufacture of coke. This matter is loose like ashes or sand, and it slipped or slid in his attempt to climb it, causing intestate to fall or roll back on the track or near enough to be struck by some part of the engine and killed.

Whether or not the bell was rung or the whistle was blown, at or about the time of the injury complained of, was a circumstance admissible in evidence, under the issues raised on the trial. Hence, there could be no error in allowing proof thereof. While the failure to do either, or both, would not alone render defendant liable, or excuse the defendant if otherwise liable, yet it was admissible, in connection with other evidence, to aid in making out plaintiff's case and probably the defendant's defense, or in rebutting it. Such evidence might have been shown to be a part of the res gestæ.

Evidence as to the condition of the track was also admissible, as a description of the locus in quo. While, of course, there was no duty on defendant to furnish intestate a good or safe track or right of way on which to walk, and no liability could possibly result from a failure to furnish, maintain, or keep such roadbed, track, or right of way, yet a description of the locus in quo, the scene of the accident or injury, was competent, as tending to show whether defendant's agents in charge of the train were guilty of negligence, and, if so, in what degree, and also whether intestate was guilty of negligence which proximately contributed to his death.

While evidence of a custom of the public to use the roadbed or track of a railroad at a certain point, as a footpath, is not admissible for the purpose of showing a right of the public to be there on the track, or to show that a person walking along the track of the railroad at such a point is not a trespasser by reason of such custom, because if a person walks along a railroad track he is a trespasser nothwithstanding a custom or habit of the public to so walk along the track at such point, unless it be where the railroad is laid along a public street or highway which the public have equal right to...