Dorough v. Alabama Great Southern R. Co.

• Decision Date: 29 May 1930
• Docket Number: 2 Div. 946.
• Citation: 221 Ala. 305,128 So. 602
• Parties: DOROUGH v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

128 So. 602

221 Ala. 305

DOROUGH v. ALABAMA GREAT SOUTHERN R. CO.

2 Div. 946.

Supreme Court of Alabama

May 29, 1930

Appeal from Circuit Court, Sumter County; Benj. F. Elmore, Judge.

Action for personal injuries and property damage by E. B. Dorough against the Alabama Great Southern Railroad Company. Plaintiff takes a nonsuit and appeals from adverse ruling on evidence.

Affirmed.

Thos F. Seale, of Livingston, for appellant.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.

BROWN J.

While the plaintiff was driving a school bus along a public street in the town of Cuba, Ala., across defendant's railroad tracks at a public crossing, said bus was run upon by a locomotive pulling a freight train on defendant's railway, demolishing the bus and inflicting personal injury upon the plaintiff.

This suit is to recover damages for the personal injury and property loss suffered.

The first count of the complaint ascribed the plaintiff's injury and damage to the negligence of the defendant's agents in the operation of said locomotive; the second count to subsequent negligence (negligence after the discovery of peril); and the third count to wantonness.

There was evidence tending to show that the crossing at which the collision occurred is a populous and much frequented crossing at the hour the accident occurred, and that the train approached said crossing on a curve, without signals of its approach, running twenty miles per hour. There is an absence of evidence showing or tending to show that defendant's servants engaged in operating said locomotive had notice or knowledge of the crossing and the frequency of its use, facts essential to the imputation of wantonness. Alabama Power Co. v. Baley (Ala. Sup.) 126 So. 847.

There was also an absence of evidence going to show that plaintiff's peril was discovered by those in charge of the locomotive. This necessarily eliminated the issue of subsequent negligence.

However the evidence is without dispute that the collision occurred within the town of Cuba near the railroad station at a public street crossing. This evidence made a prima facie case under the simple negligence count, and under the statute the burden was on the defendant to reasonably satisfy the jury that the signals required by the statute (Code 1923, § 9952) were given. Code 1923, § 9955; Central of Georgia Ry. Co. v. Moore, 200 Ala. 213, 75 So. 971.

After the plaintiff closed his testimony, and the plaintiff had been recalled for further cross-examination, giving testimony showing without dispute that he failed to stop, look, and listen, that his motor was running and his curtains down, that when he discovered the approaching train and its proximity to the crossing, he made an effort to get across before the train reached the crossing, but failed, the defendant made motion to exclude all the plaintiff's evidence on the following grounds:

"1. That no negligence shown on part of defendant.

"2. That there was proximate contributory negligence on part of plaintiff.

"3. That there is no testimony to support wantonness.

"4. That testimony shows by plaintiff that all curtains were down and engine running; did not stop, look and listen according to his own testimony.

"5. If there was negligence on part of defendant there was contributory negligence on part of plaintiff proximately contributing to his own damage.

"6. That there is no subsequent negligence shown on part of defendant's agents or servants on the occasion complained of."

The court granted the motion, excluded all the evidence, and because of this ruling the plaintiff took a nonsuit with bill of exceptions.

The practice of entertaining a motion by the defendant, at the conclusion of the plaintiff's evidence, to exclude the evidence, has been repeatedly and consistently condemned.

In Mobile, Jackson & Kansas City R. R. Co. v. Bromberg Adm'r, 141 Ala. 283, 37 So. 395, 401, the court observed: "The second ground [of the motion to exclude plaintiff's evidence] is upon the theory, as urged in argument by counsel for appellant, that the testimony introduced by the plaintiff himself established the truth of the plea of contributory negligence. Conceding this to be true, then the proper course to pursue was, not by motion...