Central of Georgia Ry. Co. v. Chambers

• Decision Date: 15 May 1913
• Citation: 62 So. 724,183 Ala. 155
• Parties: CENTRAL OF GEORGIA RY. CO. v. CHAMBERS.
• Court: Alabama Supreme Court

62 So. 724

183 Ala. 155

CENTRAL OF GEORGIA RY. CO. v. CHAMBERS.

Supreme Court of Alabama

May 15, 1913

Appeal from Circuit Court, Russell County; M. Sollie, Judge.

Action by Canty Chambers against the Central of Georgia Railway Company for damages for personal injuries. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

The case made by the pleadings as to the first count is that at a term named the defendant was operating and running a freight train composed of a number of freight cars and caboose and engine on its line of railway which ran east and west through the town of Hatchechubbee, Russell county, Ala., which track crosses the public highway in said village, which was the only highway along which persons on the south side could cross over to the north side thereof, and vice versa, and that part of the business houses in said village are on the south side and part on the north side of the railroad, and that the public highway is the only way of passing from one side to the other, which situation is well known to the defendant; and plaintiff avers that defendant owed the plaintiff the duty, in the operation of its trains in said village, to so operate them as to permit plaintiff and others at all times reasonable passage over said highway, but that between the hours of 10 and 11 a.m. on April 1, 1910, the defendant so willfully, negligently, and wantonly operated its said freight train along said highway, or across the same, as to entirely block and obstruct it for more than 20 minutes, and at a time when plaintiff was under the necessity of crossing from the south to the north side of defendant's track, but finding it obstructed by said freight train, which was extended more than 100 feet on either side of the center of the said crossing, the defendant stopped, looked, and listened, and hearing no whistle or bell whereby he might be apprised that this train was about to be moved, or was in motion, without becoming a trespasser plaintiff climbed over, went between, or crawled under said train of freight cars on said crossing. It is then averred that plaintiff stopped, looked, and listened for 15 minutes for said train to move before attempting to cross, and defendant knew that he and other persons were being obstructed and delayed at said crossing, but notwithstanding said knowledge willfully, negligently, and wantonly failed to open said public crossing, and that by virtue thereof it was and became necessary for plaintiff to climb between the cars standing directly over said public highway, and that while plaintiff was so passing between said cars, and without blowing the whistle or ringing the bell, the train was so negligently backed or moved forward as to jerk said cars and put them in motion, while plaintiff was on the drawhead of said cars and unaware, by virtue of the negligent failure of defendant to ring the bell or to blow the whistle, that said train was in motion or about to move from the station whereby plaintiff's left foot was so badly and seriously mashed [here follows catalogue of injuries], and that said damage is the proximate result or cause of the negligent failure of defendant to ring the bell or blow the whistle at short intervals immediately before leaving the station or while moving within or passing by said village of Hatchechubbee. The complaint alleges the age of plaintiff to be between 13 and 14 years, and that the reasonable use of the crossing by defendant in the discharge of its business or the operation of its train was not so long as 20 or even 10 minutes. Further allegation is made that plaintiff was an inexperienced boy and that it then and there appeared to him reasonably that the most convenient and safe manner for him to cross said crossing was by climbing over the drawhead of the cars.

Counts numbered 2, 3 and 4, as well as 5 and 6, allege the violation of the duty to plaintiff and the general public in blocking said crossing for an unreasonable length of time, but otherwise is similar to count 1.

Count 7 describes the situation in the village as set out in count 1 and the fact that the crossing was used by a large number of people and the general public at all hours of the day, which was known to defendant, and that said public highway had been so used for a great number of years; in fact, it was the only way by which the people could cross from the north to the south side of the town, and that this was generally known to defendant, and that between the hours of 10 and 11 on April 1, 1910, and just before the arrival of the passenger train going east, at which said railroad crossing was most used by a great number of people and the general public, which fact was well known to defendant, the defendant willfully wantonly, and negligently blocked said railroad crossing although it was not reasonably necessary for defendant in the reasonable management of its business, and in the reasonable operation of its trains in said village to do so, by leaving said train of cars standing over said public highway crossing for an unreasonable time, to wit, 20 minutes, and by disconnecting its engine from said train of cars and using it for switching purposes at said station without disconnecting said train of cars at said public crossing, and affording the general public and this plaintiff a reasonably safe and convenient method of crossing over said railroad by means of said public highway, although plaintiff avers that defendant could have so permitted passage over said crossing to plaintiff and the general public without unreasonable trouble, expense, or delay to the defendant in the operation of its train and the reasonable conduct of its business; and that defendant in the operation of its train, and in the reasonable conduct of its business at said village, owed the general public and this plaintiff the duty to so operate its train and to so conduct its business as to afford this plaintiff and the general public an unobstructed right of way over said crossing, but that notwithstanding its duty defendant willfully, wantonly, and negligently blocked said railroad crossing in the manner aforesaid, and plaintiff avers that at this time, and for a long time prior thereto because of the willful, wanton, and negligent blocking of said crossing, a large number of people and the general public were forced to crawl over or crawl under or go between the cars of said train while it was so blocking said crossing in passing from one side to the other of said railroad, which fact was well known to defendant. And at said time and place the plaintiff avers that he was under the necessity of crossing from the south to the north side of said railroad crossing, and that he stopped and waited some 15 minutes and while so waiting he saw others crawling over or under or going between the said cars in passing from one side to the other in said public highway; that he was then and there a youth under the age of 14 years, and without knowledge of the probable danger that would accrue to him in crossing said railroad at said public crossing, and it reasonably appeared to him that the most convenient and safe manner of crossing said railroad at said crossing would be for him to crawl over the drawhead of the cars that stood immediately over said railroad track, and plaintiff avers that at said time and place when defendant knew or by the exercise of ordinary care should have known that the general public and a large number of people were crossing the railroad track by crawling over or under or going between said cars as they had done for a number of years prior thereto whenever at said place said crossing was so blocked and when defendant knew or by the exercise of reasonable care should have known that this plaintiff was crossing said railroad by crawling over the drawhead on the said car standing over the said crossing, and with such knowledge the defendant's agents and servants, without keeping a proper lookout, willfully, wantonly, and negligently failed to blow the whistle or ring the bell while moving through or moving within said village, and willfully, wantonly, and negligently backed said engine against said train of cars and with reckless disregard of the peril of this plaintiff and such others of the general public as might then and there at said time and at said public highway be crossing from one side of said railroad crossing to the other, so willfully, wantonly, and negligently operated said train as to mash, disfigure, and permanently injure plaintiff's foot, and plaintiff avers that defendant's agents and servants who were in control of and operating said train then and there knew and were presently conscious of the fact that it was probable and likely that some person or persons, the general public, were then and there exposed to peril at said public highway, and were conscious of the fact that they were omitting to take usual and proper precaution to avoid injuring said person, and with full consciousness of said fact as aforesaid ran said train against the foot of this plaintiff so that the same was mashed, etc.

Count 9 is similar to count 7.

Plea 2 is that the counts and all of them aver and show that, at the time said plaintiff received the hurts and injuries and damages for the recovery of which this suit is brought, he was a trespasser on the train of defendant and was guilty of contributory negligence in this: That, while the freight train was standing at said crossing, said plaintiff attempted to climb between two of the cars of said train, and, while so attempting to climb beween said two cars, the same began to move and said plaintiff was injured, and defendant avers that said contributory negligence on the part of plaintiff...