Central of Georgia Ry. Co. v. Porter

• Decision Date: 27 April 1922
• Docket Number: 7 Div. 287.
• Citation: 93 So. 394,207 Ala. 417
• Parties: CENTRAL OF GEORGIA RY. CO. v. PORTER.
• Court: Alabama Supreme Court

93 So. 394

207 Ala. 417

CENTRAL OF GEORGIA RY. CO. v. PORTER.

7 Div. 287.

Supreme Court of Alabama

April 27, 1922

Appeal from Circuit Court, Talladega County; S.W. Tate, Judge.

Action by W. T. Porter against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Nesbit & Sadler and J. M. Gillespy, Jr., all of Birmingham, for appellant.

R Williams, of Sylacauga, for appellee.

GARDNER J.

Appellee recovered a judgment against the appellant in a suit for damages to his automobile, resulting from a collision of one of the freight trains of appellant railway with his said car at a populous street crossing in the city of Sylacauga. The cause was submitted to the jury upon count A of the complaint, charging wanton or willful injury, and count B rested for recovery upon subsequent negligence. The jury returned a verdict in favor of the plaintiff upon count B the subsequent negligence count. The freight cars were being backed across this crossing at the time of the collision, and it is conceded that the driver of the car (plaintiff's agent) was guilty of negligence in going upon the track without having first observed the rule of law requiring him to stop, look, and listen.

As to the subsequent negligence count, the defendant insisted that the conductor of the freight train was on top of the rear car, and upon discovering the perilous position of the driver of plaintiff's automobile immediately did all possible to avert the accident, but there was evidence from which the jury could infer that the conductor saw the perilous position of the driver of the car and failed to promptly give the stop signal to the engineer, and that, had this been done, the accident could have been averted. Upon this theory the subsequent negligence count was properly submitted to the jury, and the affirmative charge thereto was therefore correctly refused.

The defendant reserved exception to the following portion of the oral charge of the court:

"Now, when this man came up there at the railroad crossing, was this car still, and had it been the habit of the railroad company to flag before backing, and did Mr Collins know that. If that was a true state of affairs, then he had the right to presume that there was no danger there if he did not see the danger there. If he did not see the flagman, as I understand him to mean, or somebody on the back of the train."

The witness Collins, the driver of the automobile, had testified that when the railroad was switching cars over that crossing they had "some one there flagging the crossing the biggest part of the time," to use the language of the witness; but he further stated that some time they had no one there for that purpose. There was other evidence to the effect that frequently a flagman was placed at the crossing while...