Callaway v. Moseley

• Decision Date: 07 November 1942
• Docket Number: No. 10311.,10311.
• Parties: CALLAWAY v. MOSELEY.
• Court: U.S. Court of Appeals — Fifth Circuit

131 F.2d 414 (1942)

CALLAWAY v. MOSELEY.

No. 10311.

Circuit Court of Appeals, Fifth Circuit.

November 7, 1942.

Benj. P. Crum, of Montgomery, Ala., and A. M. McDowell, of Eufaula, Ala., for appellant.

Richard T. Rives, of Montgomery, Ala., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

This suit was for damages for personal injuries sustained by plaintiff at a public crossing in the City of Union Springs, Alabama. The claim was that while walking along a public street which crossed defendant's track near the railway station, plaintiff was negligently run down and injured by a train of defendant. The defense was a denial of the negligence alleged, and a claim that plaintiff was herself guilty of contributory negligence, in failing to stop, look and listen to ascertain the approach of the train before crossing the track. There was a trial to a jury, a motion for a directed verdict, on the ground that plaintiff was guilty of negligence which proximately caused her injury, requests for, and the giving of, special charges, a general charge to which there was no objection or exception, and a verdict for plaintiff. Defendant appellant is here on a single ground of error that its motion for a directed verdict should have been granted; that in short the evidence as a matter of law made out a case of contributory negligence barring plaintiff's recovery. Appellee, on her part, pointing to the evidence that plaintiff did stop, look and listen, that she did not, and could not in the exercise of ordinary care, on account of the obstruction at the edge of the track, see or hear the approaching train, and that her conduct in undertaking to cross the track was not negligent, or if it was, it was not the proximate cause of her injury, insists that the question of her right to recover is foreclosed by the jury's verdict. It is the law in Alabama, as generally elsewhere, that the burden of proving contributory negligence and that it proximately caused the injury is on the defendant, and that unless the evidence is such that reasonable minds could draw but one conclusion from it, the question of whether a plaintiff is guilty of contributory negligence barring recovery is a question for the jury. It is the law in Alabama too that one approaching a railroad crossing is under a duty to stop, look and listen before attempting to cross, that the neglect of that duty constitutes contributory negligence and, if it is the proximate cause of the injury, bars recovery. Southern Railway Co. v. Summers, 223 Ala. 417, 168 So. 179; Louisville & Nashville R. Co. v. Williams, 172 Ala. 560, 55 So. 218; Louisville & Nashville R. Co. v. Griffin, 240 Ala. 213, 198 So. 345; Davis v. Sorrell, 213 Ala. 191, 104 So. 397; Southern Railway Co. v. Melton, 240 Ala. 244, 198 So. 588. Under Alabama law, it will not avail plaintiff to prove that he stopped, looked and listened, if it also appears that if he had kept a vigilant lookout he would have seen the train. Sloss-Sheffield S. & I. Co. v. Peinhardt, 240 Ala. 207, 199 So. 33; Peters v. Southern R. Co., 135 Ala. 533, 33 So. 332. Neither will it avail him to prove that his view of the track was limited and partially obstructed, and that because it was, he went on the track without making that vigilant use of his faculties to avoid injury which the existence of such a dangerous situation would require. Louisville & Nashville R. Co. v. Williams, 172 Ala. 560, 55 So. 218. Relying on these well-established principles, and on the fact that there was evidence: that the engineer caused all required and appropriate signals to be given; that plaintiff could, and ought to have, heard them; and that if she had stopped, looked and listened with sufficient caution, she could, and would,...