Central of Georgia Ry. Co. v. Pope

• Decision Date: 17 April 1930
• Docket Number: 4 Div. 433.
• Citation: 221 Ala. 145,127 So. 835
• Parties: CENTRAL OF GEORGIA RY. CO. v. POPE.
• Court: Alabama Supreme Court

127 So. 835

221 Ala. 145

CENTRAL OF GEORGIA RY. CO. v. POPE.

4 Div. 433.

Supreme Court of Alabama

April 17, 1930

Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.

Action for damages for personal injuries by T. R. Pope against the Central of Georgia Railway Company. Judgment for plaintiff and defendant appeals.

Affirmed.

G. L Comer and McDowell & McDowell, all of Eufaula, for appellant.

L. M Moseley and T. S. Frazer, both of Union Springs, for appellee.

BROWN J.

The plaintiff, appellee here, while engaged in driving his automobile across the defendant's railroad tracks in the town of Midway, at a private crossing, said automobile was run upon by one of defendant's locomotives attached to and pulling a freight train, in consequence of which plaintiff received injuries to his person, which some of the evidence tends to show were of a permanent nature. For these injuries he has sued and recovered a judgment for $5,000.

The first count of the complaint ascribes plaintiff's injuries to the negligence of the defendant, and the other counts ascribe said injuries to the willful or wanton conduct of the agent, servant, or employee of the defendant in charge or control of said engine, while acting within the scope of his employment.

In addition to the plea of the general issue-not guilty-to all of the counts, the defendant filed two special pleas of contributory negligence as to the first count. The second plea avers "That the plaintiff was guilty of contributory negligence in receiving the injuries now sued for, in this-that the plaintiff approached said crossing over defendant's railroad and got sufficiently near to and in close proximity to said railroad where he could have a clear view up and along said railroad, he failed to stop and look and listen to find out and ascertain if any train was approaching or liable to pass over and along said railroad which he was then about to undertake to cross, and that such negligence on his part proximately contributed to the injuries received by him and now sued for in this action." (Italics supplied.)

Plea 3 avers that plaintiff was guilty of negligence which proximately contributed to his injury in "That when plaintiff approached said crossing at which the injury occurred and got sufficiently to and in close proximity to said crossing on said railroad, where he could have a clear view up and along said railroad, he failed to stop and look and listen to find out and ascertain if any train of defendant was approaching or liable to pass (over) and along said crossing, which plaintiff was then about the (to) undertake to cross, and if plaintiff had so stopped and looked and listened he could and would have seen and heard the approaching train which struck the automobile, which could be easily seen and observed or heard, and that plaintiff's failure to stop and look and listen at such time and place proximately contributed to the injuries he now sues for." (Italics supplied.)

The evidence is without dispute that the crossing at which the collision between the defendant's locomotive and plaintiff's automobile occurred was situated within the corporate limits of the town of Midway, a town of about 1,000 inhabitants; that the crossing was constructed and maintained under a written contract or lease between the defendant and the Caples Lumber Company, granting the lumber company, as the defendant's tenant, for and in consideration of the payment of $1 per annum as rent, to construct and maintain said crossing in a safe condition, "in accordance with law, *** under the supervision and in accordance with the direction of a representative of the railroad," the railroad company reserving the right "for any reason and at any time on thirty days' notice to the tenant" to require the lumber company to "remove said private road entirely from the railroad's right of way or property."

It was further stipulated that the tenant would indemnify the railroad against all losses, damages, liabilities, or expenses arising from injury or damages to all persons or property, when said injury or damage occurs at or on said private road, or as a direct or indirect result of the use thereof, and this notwithstanding any negligence, contributory negligence or otherwise," etc. Said agreement was entered into on June 18, 1924, and the evidence shows that the crossing was put in shortly thereafter by the defendant's servant, the lumber company, paying the cost thereof.

The evidence shows that there was a public road or public street on each side of the railroad tracks, leading into the business district of Midway; that a private or settled road led from one into the other, passing over the crossing where the collision with plaintiff's automobile occurred; that this private or settled road and crossing were used by the mill company's employees, and such of the public as had business with the mill company, and by others as suited their convenience or pleasure.

Mr. Abrams, one of defendant's witnesses, testified as to the character of the neighborhood where the crossing is located, and its location: "The railroad company put in that crossing at the instance of the J. D. Caples Lumber Company. There was no road crossing there before it was put in. I guess we (the Caples Lumber Company) opened up that road. My best judgment is that it is about 200 yards within the corporate limits of Midway or James. There are many people living around that planing mill, or right near it, back of it, I suppose, and at the side of it. I live pretty near a quarter of a mile from the depot, I suppose. There are some residences (between) my planing mill and the depot, there are four. Around my planing mill there is a pretty thickly settled neighborhood. It is mostly colored people."

And as to its use: "About that time (the time of the alleged injury) and subsequent to that time I would say that the road there where that crossing leads across has been used by the public generally. A good many people who have no connection with my mill, or business with the railroad, are passing going to and fro across that crossing; some do. *** In my best judgment the average number of different cars and different trucks passed there 200 times on an average day, backwards and forwards. We had about fifteen trucks hauling lumber for us at that time. Outside of the lumber trucks about 10 or 12 pass there a day. *** I say there were about 15 trucks hauling lumber there. They made on an average of about four trips a day. In other words, each truck would pass there over that track eight times a day going and coming, and we had fifteen trucks. That was all that we had. Those trucks were not running every day. As to how many days during a month they would run that strong, well, along at that time it was very dry weather and the roads were good, and they were running practically five or six days in the week hauling lumber. Trucks other than those lumber trucks and people passing beyond my mill and going into Midway, or coming out of Midway and points north of that railroad were coming by there; they passed there. They were going to other points north or south."

There was also evidence going to show that the employees of the mill, and other persons in automobiles, passed over this crossing daily.

The evidence was without dispute that the enginemen in charge of the locomotive on this occasion passed this point daily, had engaged in switching on the spur track leading up to the mill, and were familiar with the existence and location of the crossing, and tended to show that they were familiar with...