Cunningham Hardware Co. v. Louisville & N. R. Co.

• Citation: 209 Ala. 327,96 So. 358
• Decision Date: 26 April 1923
• Docket Number: 1 Div. 272.
• Parties: CUNNINGHAM HARDWARE CO. v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

96 So. 358

209 Ala. 327

CUNNINGHAM HARDWARE CO. v. LOUISVILLE & N. R. CO.

1 Div. 272.

Supreme Court of Alabama

April 26, 1923

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by the Cunningham Hardware Company against the Louisville &amp Nashville Railroad Company for damages to a motor truck. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Reversed and remanded.

Inge &amp Bates and Vincent F. Kilborn, all of Mobile, for appellant.

Smiths Young, Leigh & Johnston, of Mobile, for appellee.

THOMAS J.

The suit is for damages to a truck caused by collision with defendant's engine at a street crossing.

Count 4 predicates liability on facts tending to show that defendant's servant so negligently operated the engine in question as to collide with the truck of plaintiff at the time and place indicated. In counts A and B liability is sought to be predicated upon the facts that defendant maintained a flagman at the crossing and at the time the accident occurred; that said flagman signaled plaintiff's driver to proceed to or upon the crossing, which signal plaintiff's driver relied upon, proceeded on the crossing where the collision occurred, and, as a proximate result of which plaintiff's property was damaged, for which the suit was brought.

To count 4 defendant filed pleas of the general issue and special pleas B, C, and D of contributory negligence for failure of the driver of the truck to stop, look, and listen before going upon the crossing. To counts A and B, in addition to the general issue and foregoing special pleas, defendant further pleaded specially that plaintiff's driver, operating the truck within the line and scope of his duties, negligently failed to exercise his senses of sight and hearing before going upon the crossing, and thereby contributed to his injury.

The only replications found in the record are filed of date 5/10/21, which we judicially know to have been the 10th day of May, 1921 (Sovereign Camp W. O. W. v. Reed, 208 Ala. 457, 94 So. 910), and were "to the first pleas filed by the defendant" of date (4/27/21) April 27, 1921. The complaint then consisted only of count 1. Said pleas, which said replication was intended to answer, were of contributory negligence for failure of the driver to stop, look, and listen. The replication was that-

"Plaintiff's automobile was going east on Eslava street, a public street in the city of Mobile, Ala., and that just north of Eslava street and close to the track upon which said locomotive was approaching Eslava street, from the north, there was a cattle pen and small house which obstructed the view of a person approaching the said track on Eslava street in going east on Eslava street, so that such person could not see a locomotive approaching Eslava street from the north, and that by reason thereof the driver of the plaintiff's automobile could not see the approaching locomotive."

The demurrer to the replication was overruled (May 10, 1921). Thereafter defendant had leave of the court to file additional pleas on October 5, 1921, and the complaint was amended by adding count 4 (and 5), to which defendant replied with pleas of the general issue and the special pleas B, C, and D. Thereafter the complaint was amended by the addition of counts A and B, to which said pleas were refiled on January 13, 1922. The trial was had upon counts 4, A, and B, upon the general and special pleas stated, and to which no replication was filed.

Several assignments of error are predicated on rulings in the rejection and admission of evidence. Witness Powell testified that, as plaintiff's agent, he was driving the truck in question at the time of the collision; that there was a flagman "standing off" (near the crossing) talking to a lady, and when he blew the horn on his car, for signal, the flagman "motioned" him to "go ahead," and in response thereto he drove upon the track as soon as he received the signal from the flagman to "go ahead towards the river, the direction in which he was going." Witness then stated that he had theretofore made that crossing many times, and was asked: "Did you know whether it was customary to maintain a flagman there?" Defendant's objection to the question as immaterial and irrelevant was sustained, and plaintiff duly reserved an exception to this ruling. It is competent to show whether or not it was customary to maintain a flagman or watchman at a railroad crossing. B'ham Southern R. Co. v. Harrison, 203 ala. 284, 292 (11), 82 So. 534; L. & N. R. Co. v. Stewart, 128 Ala. 313, 329, 29 So. 562; Central of Ga. R. Co. v. Stephenson, 189 Ala. 553, 66 So. 495; A. G. S. R. Co. v. Anderson, 109 Ala. 299, 19 So. 516; L. & N. R. Co. v. Webb, 90 Ala. 185, 8 So. 518, 11 L. R. A. 674. Under the witness' evidence that he had theretofore frequently passed over this crossing-"made that crossing many times"-it was error to reject the proffered evidence to the effect that it was customary for defendant to maintain a flagman at the crossing before and to the time of the collision.

On cross-examination Powell was asked, "You did not take the time or pains to look to see whether he had the go sign to you or the stop sign to you?" and replied, "I looked at it, but he waved it so quick I didn't see." Witness being then asked, "You didn't notice?" answered, "I could not tell, because he waved the board to go ahead, and I went ahead." The bill of exceptions recites that defendant moved to exclude the statement of the witness that "he waved the board to go ahead," which motion was granted, and plaintiff duly reserved an exception to this ruling. The court instructed the jury that this witness' conclusion that a certain signal meant to go ahead was not binding on them. This statement of fact by the witness, that "the flagman waved the board to go ahead," was not a mere conclusion, but was the statement of a collective fact that was permissible. Standard Cooperage Co. v. Dearman, 204 Ala. 553, 555, 86 So. 537; B'ham & A. R. Co. v. Campbell, 203 Ala. 296, 298, 82 So. 546; Porter v. L. & N. R. Co., 202 Ala. 139, 141, 79 So. 605; L. & N. R. Co. v. Hayward, 201 Ala. 9, 75 So. 22; Perrine v. Southern Bitulithic Co., 190 Ala. 96, 66 So. 705; Pope v. State, 174 Ala. 63, 57 So. 245; Penn. Casualty Co. v. Perdue, 164 Ala. 508, 51 So. 352; St. L. & S. F. R. R. Co. v. Brantley, 168 Ala. 579, 53 So. 305; Southern Ry. Co. v. Weatherlow, 153 Ala. 171, 44 So. 1019; B'ham Southern R. Co. v. Harrison, 203 Ala. 284, 82 So. 534; L. & N. R. Co. v. Williams, 183 Ala. 138, 145, 62 So. 679, Ann. Cas. 1915D, 483; Central of Ga. Ry. Co. v. Hyatt, 151 Ala. 355, 43 So. 867; Torry v. Krauss, 149 Ala. 200, 43 So. 184; Shafer & Co. v. Hausman, 139 Ala. 237, 35 So. 691; Rollings v. State, 136 Ala. 126, 34 So. 349; K. C., M. & B. R. Co. v. Weeks, 135 Ala. 614, 34 So. 16; Busbee v. Thomas, 175 Ala. 423, 57 So. 587; Ala. Mineral R. Co. v. Jones, Adm'r, 114 Ala. 519, 21 So. 507, 62 Am. St. Rep. 121; McVay v. State, 100 Ala. 110, 14 So. 862; B'ham Min. R. Co. v. Harris, 98 Ala. 326, 336, 13 So. 377; E. T. V. & G. R. Co. v. Watson, 90 Ala. 41, 7 So. 813; Woodstock Iron Co. v. Roberts, 87 Ala. 436, 6 So. 349; Woodstock Iron Co. v. Reed & Partlow, 84 Ala. 493, 4 So. 369; Eureka Co. v. Bass, 81 Ala. 200, 8 So. 216, 60 Am. Rep. 152; Hood v. Disston, 90 Ala. 377, 7 So. 732; Turnley v. Hanna, 82 Ala. 139, 2 So. 483; Elliott v. Stocks, 67 Ala. 290.

The defendant's witness Jenkins testified that he was its claim agent and was at the crossing on "the day of the collision, and *** the morning of the trial"; that he went to the place of collision about an hour after the same had happened, and was familiar with the "lay of the tracks" at that point. Thereupon the witness was asked, "Are you familiar with that situation down there, the lay of the tracks?" and answered, "Yes, sir," and testified that the tracks were the same at the time of the accident and immediately thereafter as at the time he "measured them." Witness was then asked, "Do you know what the distance was between the south-bound main line and the first track west of that?" Plaintiff's objection being overruled and due exception reserved, the witness answered:

"*** It measures eight feet from rail to rail; that is, the west rail of the south-bound main and the east rail of what is known as the lead track."

There was no error in this. The witness, having shown a sufficient knowledge of the location and condition of the tracks in question, and the same not having been changed from the time of the accident to the time of the measurement, was, therefore, prepared to speak of the result of his observations of the conditions, locations, and measurements made by him immediately after the accident.

It is apparent that reversible error has intervened, unless the defendant was entitled to the general affirmative charge as to each count, and the rulings complained of could not have altered the result, even if they had been otherwise. Such is the rule where the error complained of is without injury or cannot in the remotest degree tend to produce a conflict or an adverse inference to a contrary conclusion. Travis v. A. G. S. R. Co., 199 Ala. 38, 73 So. 983; Sands v. L. & N. R. Co., 156 Ala. 323, 47 So. 323; Bowling v. M. & M. Ry. Co., 128 Ala. 550, 556, 29 So. 584; L. & N. R. Co. v. Johnson, 128 Ala. 634, 638, 30 So. 580; Hill v. McBryde, 125 Ala. 542, 28 So. 85; Glass v. Meyer, 124 Ala. 332, 26 So. 890; Glass v. M. & C. R. Co., 94 Ala. 581, 10 So. 215.

It is necessary that we ascertain whether or not the affirmative charge should have been given at defendant's request as to counts 4, A, and B. The gravamen of count 4 is:

"*** On or about, to wit, the said 11th day of

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