Birmingham Southern R. Co. v. Harrison

Decision Date16 January 1919
Docket Number6 Div. 767
Citation82 So. 534,203 Ala. 284
PartiesBIRMINGHAM SOUTHERN R. CO. v. HARRISON.
CourtAlabama Supreme Court

On Rehearing, April 10, 1919

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Mrs. Mary E. Harrison, as administratrix of the estate of J.F. Mackey, against the Birmingham Southern Railroad Company for damages for the death of her intestate in a collision between an automobile in which intestate was riding and an engine of the defendant. Judgment for the plaintiff in the sum of $22,500, and defendant appeals. Affirmed.

The pleadings and the facts sufficiently appear from the opinion of the court.

The following are the charges referred to in the opinion:

Defendant's given charge 10:

I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that Wetzel negligently failed to stop, look, and listen for the approach of trains at a place where the approach of the train could be seen or heard, and without stopping, looking, and listening negligently drove his jitney onto the railroad track, and that such negligence on the part of Wetzel was the sole proximate cause of the death of plaintiff's intestate then your verdict must be for the defendant.

Plaintiff's given charges:

(1) The court charges the jury that the word "sole," as used in charge number 10, means unaccompanied by any negligence on the part of the defendant its agents or servant, as charged in the complaint.
(2) If you are reasonably satisfied from the evidence that defendant or its servants were guilty of any negligence as charged in the complaint, then you must return your verdict in favor of the plaintiff, however negligent the driver of the automobile may have been.
(3) If you are reasonably satisfied from the evidence that the defendant or the defendant's servant or agent were guilty of any negligence as charged in the complaint, then the jury must return their verdict in favor of the plaintiff notwithstanding the driver of the automobile was guilty of negligence, and notwithstanding said negligence of said driver of said automobile proximately contributed to cause said train to collide with said automobile, and proximately contributed to cause intestate's death.

Defendant's refused charges:

(6) I charge you, gentlemen of the jury, that if you believe the evidence in this case, there was no duty upon the defendant railroad company to maintain an electric bell at the crossing at which this accident happened.
(7) I charge you, gentlemen of the jury, that defendant was under the duty of giving timely notice of the approach of its trains at the crossing to people using the road at the crossing; and I further charge you that, if you are reasonably satisfied from the evidence that such notice was given in this case by blowing the whistle on the engine a quarter of a mile before the train reached the crossing and immediately after blowing the whistle, by ringing the bell on the engine continuously until the train reached the crossing then you cannot find for the plaintiff on account of the failure of the electric gong at the crossing to ring, if you believe from the evidence that there was such failure of the gong at the crossing to ring.
(8) I charge you, gentlemen of the jury, that the defendant was under the duty of giving timely notice of the approach of its trains to the crossing to people using the crossing; and I further charge you that, if you are reasonably satisfied from the evidence that such timely notice was given in this case by blowing the whistle on the engine a quarter of a mile from the crossing, and immediately thereafter by ringing the bell on the engine continuously until the approach of the train, by ringing the gong at the crossing, this would not constitute a ground for recovery in this case.
(9) I charge you, gentlemen of the jury, that in the case where the railroad track crosses a public road there are mutual duties enjoined by the law upon the railroad company operating trains across the crossing. It is the duty of persons using the road at the crossing to stop, look, and listen for the approaching trains before going onto the railroad track at a place where the approach of the train can be seen or heard, and it is the duty of the railroad company to give timely notice of the approach of its trains at the crossing to people who are themselves approaching the railroad track in the exercise of reasonable care; and I further charge you that, if you are reasonably satisfied from the evidence in this case that the defendant gave timely notice by blowing the whistle on the train for a quarter of a mile before the train reached the crossing, and immediately thereafter by ringing the bell continuously until the train reached the crossing, then the railroad would have fully discharged this duty of giving the required notice of the approach of its train to the crossing.
(11) I charge you, gentlemen of the jury, that if they believe the evidence, the silence of the crossing gong, if they believe from the evidence that the gong was silent, was not the proximate cause of the death of plaintiff's intestate.
(12) I charge you gentlemen of the jury, that if you believe from the evidence that the crossing gong was silent at and before the time of the accident, such silence of the gong would not amount to an invitation to persons using the road approaching the crossing to go onto the railroad track without first stopping, looking, and listening for the approach of the trains to the crossing.

Percy, Benners & Burr, of Birmingham, for appellant.

W.A. Denson, of Birmingham, for appellee.

THOMAS J.

The suit is for personal injury under the Homicide Act.Code, § 2486. The complaint contains counts for simple negligence, for subsequent negligence, and for wanton, willful, or intentional conduct.

Defendant pleaded the general issue to the several counts and special pleas 2 and 3 to the first count. The second plea sought to allege contributory negligence on the part of plaintiff's intestate in his riding in an automobile with a driver by him known to be careless, reckless, and incompetent, and in that said driver negligently failed to stop, look, and listen before crossing the railroad track of the defendant at the time of the injury in question. The third plea sought to allege contributory negligence in plaintiff's failing to warn the driver of the automobile of the approach of the train, or in failing to make protest to said driver, "or to make such other effort which she [he] reasonably could have made to avoid being carried onto the track," etc.

Among other grounds of demurrer to plea 2, it was urged that the carelessness, recklessness, or incompetency of said Wetzel (the driver), which was averred to have been known to the intestate, was not averred to be that carelessness, recklessness, or incompetency which proximately contributed to intestate's death. In support of the sufficiency of this plea is cited Bresee v. Los Angeles Tract. Co., 149 Cal. 131, 85 P. 152, 154, 5 L.R.A. (N.S.) 1059; Lawrence v. Sioux City, 172 Iowa, 320, 154 N.W. 494; Meenagh v. Buckmaster, 26 A.D. 451, 50 N.Y.Supp. 85.

In the Bresee Case the Justice said:

"Although the rule is *** that a person who is injured while riding in a vehicle driven by another is not chargeable with the contributory negligence of the driver, in which he did not participate, yet such person is not absolved from all personal care, but is required to exercise ordinary care to avoid the injury. *** The character and habits of the driver of the carriage with respect to similar dangers, if known to the plaintiff, would naturally have some effect on her own conduct, on the particular occasion, in keeping a lookout for the danger herself, in giving him warning, and in enjoining on him a prudent course, and in order to enable the jury to determine whether or not she exercised ordinary care in that respect, it was proper to give evidence of such character and habits, coupled with proof of knowledge thereof on her part. These observations and conclusions, however, are not applicable to the evidence of the driver's previous habits of driving with a loose rein, or of holding the reins loosely in one hand. These habits would not tend to prove either a careless habit of driving in front of cars too close for safety, or a disposition to do so."

In Lawrence's Case, supra, a witness was permitted to testify (without objection, so far as the record discloses) that intestate had stated, a short while before the accident, that she had ridden with John Knott, the driver at the time of the accident, and that at times she was afraid to ride with him. The rule, however, was adhered to that, when the decedent had nothing to do with the direction in which the automobile was moving, or the route over which it passed, or the operation of the machine, and did not in fact assume or undertake in any manner to exercise control over the driver or the car, the negligence of the driver in operating the car before and at the time of the collision could not be imputed to the occupants of the car.

In the case of Meenagh v. Buckmaster, supra, the holding was that the occupant of an automobile is not absolved from the duty to look out, as far as possible, for his own safety, and if thrown out by running on a pile of rubbish negligently left in the highway, he cannot recover for his injuries sustained of the person who placed the rubbish on the highway, if it is further averred and proven that the driver was so intoxicated, and was driving so recklessly, as that the plaintiff should have perceived it, and the injured man failed to remonstrate or to do anything to avoid the danger but continued to ride with such driver. When the facts of Meenagh's...

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