Central of Georgia Ry. Co. v. Moore

• Decision Date: 07 June 1917
• Docket Number: 6 Div. 545
• Citation: 200 Ala. 213,75 So. 971
• Parties: CENTRAL OF GEORGIA RY. CO. v. MOORE.
• Court: Alabama Supreme Court

75 So. 971

200 Ala. 213

CENTRAL OF GEORGIA RY. CO. v. MOORE.

6 Div. 545

Supreme Court of Alabama

June 7, 1917

Rehearing Denied June 28, 1917

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by J.H. Moore against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18 1911, p. 449. Affirmed.

London Yancey & Brower, of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

MAYFIELD J.

Appellee while on or in a public street, avenue, or highway, in the city of Birmingham, was stricken by a passing car or train, and caused to suffer severe physical pain and injury. Plaintiff in the court below, he brought his action against the defendant (appellant here), ascribing his injury to the negligence of the defendant.

It is first insisted that the third count, on which the trial was had, stated no cause of action, for that it affirmatively showed plaintiff to have been a trespasser upon the track of the defendant, and relied solely upon initial simple negligence, and therefore showed affirmatively that the injury was the consequence of plaintiff's own wrong in trespassing upon defendant's railroad track. This contention cannot be supported, because the complaint alleges--and on demurrer the allegation must be treated as true--that at the time of the injury plaintiff was in or on a public highway where he had a right to be; and he was therefore not a trespasser.

Whether or not plaintiff was a trespasser at the time of the injury was made a question for the jury, as well as whether or not defendant was guilty of negligence proximately contributing to the injury; and both of these questions were fairly submitted to the jury with appropriate instructions by the court. This being true, there was no error in the trial court's instructing the jury with reference to the duties imposed by our statutes upon those in charge of railway trains, locomotives, etc., while passing or approaching public highways, or while within towns, cities, villages, etc., and the consequences resulting from failure to perform these statutory duties, nor with reference to the burden of proof as to injuries flowing from such failures. Nor do we find any error in those parts of the charge on this subject, to which appropriate objections were interposed and exceptions reserved, nor impropriety in charging on the subject at all.

This question has been repeatedly dealt with by this court since the last changes made in the statute by the Code of 1907. Many of the cases have been reviewed, and some overruled, as to burden of proof where there was a failure to perform the duties enjoined by the statute, as to injuries by railroads of every kind whether they involved violations of these statutes or not, and whether or not the statute as to the burden of proof applied to injuries of persons as well as of other animals, and whether it applied to injuries at places on the railroad other than those mentioned in the statute. Many of these cases were reviewed in the case of Ex parte Southern Railway Co., 181 Ala. 486, 61 So. 881. In that case it was said:

"In view of the history of this statute, and the different constructions placed upon same, as appearing in the act of 1887 and the Codes of 1876 and 1867, and in different language in the Code of 1896, it would do violence to the letter of section 5476 of the present Code, as well as the legislative intent, to hold that the change in the present Code from the section appearing in the Code of 1896 was immaterial and meant nothing. It may be true that the Penney Case, 164 Ala. 188, 51 So. 392, supra, dealt with stock, and that the Smith Case, 163 Ala. 174, 50 So. 390, supra, dealt with a person; but the statute does not warrant a distinction between persons and stock in its application. The statute makes no distinction, and deals with persons and stock in the same language and under the same conditions. It may be true that the statute, as it existed prior to the act of 1887, placed the burden on the railroad only as to stock; but said act included persons with stock, and leaves no room for making a distinction."

We have, of course, shown that this statute as to the burden of proof does not apply to cases or counts, where the allegation is that the injury was wanton or willful, but only to those involving negligence, for such is the exact language and meaning of the statute. A.G.S.R.R. Co. v. Smith, 71 So. 455. We have also held that the statute does not apply to cases of frightening animals, or of injuries caused by frightening animals. L. & N.R.R. Co. v. Davis, 71...