Central of Georgia Ry. Co. v. Graham

• Citation: 220 Ala. 645,127 So. 213
• Decision Date: 27 March 1930
• Docket Number: 6 Div. 438.
• Parties: CENTRAL OF GEORGIA RY. CO. v. GRAHAM.
• Court: Supreme Court of Alabama

127 So. 213

220 Ala. 645

CENTRAL OF GEORGIA RY. CO. v. GRAHAM.

6 Div. 438.

Supreme Court of Alabama

March 27, 1930

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for personal injuries by Maude Graham, a minor suing by her next friend, H. T. Graham, against the Central of Georgia Railway Company. From a judgment for plaintiff defendant appeals.

Affirmed.

Nesbit & Sadler, of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

BOULDIN J.

Action for personal injuries resulting from collision of an automobile, driven by plaintiff, with the train of defendant at a public street crossing in the town of Irondale.

The case was here on former appeal. Central of Georgia Ry Co. v. Graham, 218 Ala. 624, 119 So. 654.

The second trial, like the first, was had on count B of the complaint, charging wantonness.

That the evidence made a case for the jury, in that the train was run at a high rate of speed over a much frequented crossing without signals of approach and without maintaining a lookout, was recognized on the former appeal. We see no reason to hold otherwise on the evidence now before us.

It is now insisted, as on former appeal, that plaintiff having testified that she looked in the direction of the approaching train before entering upon the crossing, that she is charged as a matter of law with having seen the train, although she testifies she did not, and that, having knowledge of same, the injury cannot be laid to the failure to give signals of approach, but to her own negligent act as the sole proximate cause. This doctrine was declared not applicable under the evidence presented on former appeal. In commenting on this feature of the case, we noted that certain photographs and drawings in evidence were not sent up. On the present appeal, these are sent up and the contention is again presented with the aid of these documents.

The doctrine relied upon is illustrated in the cases of Peters v. Southern Ry. Co., 135 Ala. 533, 33 So. 332, and Southern Ry. Co. v. Irvin, 191 Ala. 622, 68 So. 139, cited in former opinion. Both these cases involved footmen walking into the wake of an approaching train on an open stretch of track, the issue being one of contributory negligence. These decisions point out that the duty to keep a lookout in such case is continuous, must be kept up until the pedestrian can see that no train is dangerously near. So, when the undisputed facts disclose that by a proper lookout he could not fail to see the approaching train, he cannot acquit himself of contributory negligence by swearing he looked and did not see it. Not that as matter of law he did look, as he testifies, but that, as matter of law he either did not keep a vigilant lookout, or, if he did, he saw the train.

In the present case we are not dealing with contributory negligence, but the question is whether plaintiff is to be charged as matter of law with having discovered the approaching train in time to avoid a collision and nevertheless drove her automobile into its wake at the moment it reached the crossing; and so to lay the injury to her own act as the sole proximate cause, and not to the wanton conduct of the trainmen.

Plaintiff's evidence tends to show that as she was going north on 20th street, herself and her mother being the only occupants of the automobile, she reached the point south of the crossing where the Bankhead Highway comes from the west and turns into 20th Street; that she first looked to the left to see if any cars were coming into the junction on the Bankhead Highway; that she then looked to the right, the direction from which defendant's train was coming, and did not see nor hear it; that she then looked to the left, and, her attention being arrested by the sound of a train in that direction, she continued to keep a lookout to the left until she reached the crossing, when suddenly the train came upon her car from the right.

The exact point at which plaintiff looked to the right is not precisely fixed. As a matter of inference, it may be located from 50 to 100 feet south of the crossing. There is evidence that the train was not working steam, was coasting on a slight down grade; whether smoke was being emitted from the stack to attract attention does not appear. The photographs and other evidence tend to show a...