Duncan v. St. Louis & S.F.R. Co.

• Decision Date: 13 June 1907
• Citation: 44 So. 418,152 Ala. 118
• Parties: DUNCAN v. ST. LOUIS & S. F. R. CO.
• Court: Alabama Supreme Court

44 So. 418

152 Ala. 118

DUNCAN v. ST. LOUIS & S. F. R. CO.

Supreme Court of Alabama

June 13, 1907

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Action by Mary Duncan against the St. Louis & San Francisco Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This was an action of damages for injury occasioned by being struck by an engine of the defendant. The facts are sufficiently set out in the opinion of the court. The case was tried on counts 4, 5, 8, and 9. Count 4 was wanton willful, or intentional misconduct. Count 5, after alleging the defendant was a corporation operating a railroad, etc in the town of Cordova, and that plaintiff was in the act of crossing a track of the railroad operated by defendant at a place where she had a right to cross, declares the defendant's servants, after discovering the danger of injury to plaintiff and her perilous situation, failed to exercise due care and diligence to avoid injuring her. Count 6 alleges a failure of defendant's servants to keep a lookout at said point in order to discover persons who might be crossing the track. Count 8 is practically the same as 5. Count 9 sets out the facts stated in the opinion in reference to the number of inhabitants in the town, the popularity of the crossing, the situation of the tracks in reference to the mills and other parts of the town, and that in utter disregard for the safety of persons passing at that point and without giving any signal of approach or maintaining a lookout, willfully, wantonly, etc., propelled an engine against plaintiff.

The charge set out in the opinion is charge No. 3. Charge 6: "I charge you that, under the pleading and evidence in this case, the defendant was under no duty to run its train at such rate of speed while approaching the paths crossing the track, so that the train could be stopped before reaching the path if a person was discovered on the track at this place." Charge 5: "I charge you that unless you believe from the evidence that the engineer discovered plaintiff's position of danger on the track in time to avoid the injury, and then neglected to do everything that would likely or probably prevent the injury, and that the engineer was conscious that his acts or omissions would likely or probably result in injury to the plaintiff, you must find for the defendant." Charge 7: "I charge you that an engineer in charge of a moving train has the right to presume that a person walking on the track towards the train will get off, and the engineer is under no duty to try to stop his train until he discovers that the person is not going to get off the track." Charge 8: "I charge you that the failure to blow the whistle after the engineer discovered plaintiff does not of itself constitute such negligence as will authorize a verdict for plaintiff." Charge 11: "In order to constitute willfulness or wantonness or reckless indifference to probable consequences, it is essential that the act done or omitted should be done or omitted with a knowledge or a present consciousness that injury would probably result, and this consciousness is not to be implied from mere knowledge of the elements of the dangerous situation a party may have and yet act only negligently and inadvertently in respect of the peril." Charge 13: "If the failure to blow the whistle was a mere error of judgment, having no evil purpose or intent or consciousness of probable injury, and the failure to blow the whistle was the only negligence of the person in charge of the train, then you must find for defendant." Charge 15: "Unless you believe from the evidence that the engineer, after discovering the peril of plaintiff, did not in good faith exercise due diligence and care to prevent the injury, you must find for the defendant."

The defendants, by pleas 5 and 6, set up a payment to the defendant of a sum certain, and a release or remittitur of damages. The replications set up fraud and deceit in the procurement of the release, and that the $10 was not given as the release, but was a gift from an individual, which he did not know. In respect to this matter the following charges were given by the court at the request of the defendant: "(1) I charge you, if Mrs. Duncan knew before the suit was brought that the money was paid under the release offered in evidence, you must find for the defendant. (2) I charge you that, if you believe Mrs. Duncan made the settlement as claimed by the defendant, you have nothing to do with whether or not she was entitled to more money. If she made the settlement, she was bound by it. * * * (9) Unless you are reasonably satisfied from the evidence that the money was the gift of Mrs. Duncan, you must find for the defendant. (10) If you are reasonably satisfied from the evidence that on the 3d day of November 1904, defendant made a settlement with the plaintiff for the injury which is the basis of this suit, and paid her $10 in settlement of the claim, you must find for the defendant. * * * (12) If the $10 was paid to plaintiff in compromise for her injuries, you must find for the defendant."

Ray & Leith, for appellant.

Bankhead & Bankhead, for appellee.

DENSON J.

The town of Cordova is a place of 2,500 inhabitants, and is located in Walker county. The defendant railroad company has a line of railroad running through said county and town. In said town defendant has what the witnesses term a transfer track, located between defendant's main line and that of the Southern Railway. This transfer track intersects defendant's main line on the northwest, and runs straight from that point in a southeasterly or southerly direction for nearly half a mile. Within a distance of 300 yards from said point of intersection there are three foot crossings on the transfer track; the third being about 300 yards from the point of intersection, in a southerly or southeasterly direction. In order to reach this crossing from the west, there is a steep embankment which must be descended, and there are several steps leading from the top of the embankment to the transfer track of the defendant; while on the east side of this track there is a footway, and a platform built of plank, leading out to the main street on the east. These steps and the platform have been there three or four years. The Indian Head Cotton Mill, in said town, is situated west of the track, and this transfer track passes through the center of the town. As many as 500 or 600 people pass over this crossing daily. It is used (as one of the witnesses expressed it) "largely by the employés of the cotton mill and the inhabitants of the town generally." It was not shown on the trial who built the steps and platform at the crossing. The plaintiff, a woman 75 years of age, alleges that she was injured by one of defendant's locomotives running against her as she was passing over defendant's track at said crossing; and she seeks to recover damages for such injury.

The track was not in a street of the town. At least, there is neither averment nor proof to that effect. If the plaintiff was a trespasser, then the company owed her no duty until its employés actually saw her on the track in a place of danger. They were not bound to keep a lookout for trespassers, and were not negligent in failing to discover her on the track. This principle is well settled in this and in other jurisdictions. Tanner's Case, 60 Ala. 621; Carrington's Case, 88 Ala. 476, 6 So. 910; Bentley's Case, 86 Ala. 484, 6 So. 37; Womack's Case, 84 Ala. 149, 4 So. 618; Blanton's Case, 84 Ala. 154, 4 So. 621; Haley's Case, 113 Ala. 648, 21 So. 357; Glass' Case, 94 Ala. 581, 10 So. 215; Phila. & Reading R. R. Co. v. Hummell, 44 Penn. 375, 84 Am. Dec. 457; Masser v. Chicago, R.I. & P. R. Co., 68 Iowa, 602, 27 N.W. 776; Toomey v. Southern P. R. Co., 24 P. 1074, 86 Cal. 374, 10 L. R. A. 139; Spicer v. Chesapeake & O. R. Co., 12 S.E. 553, 34 W.Va. 514, 11 L. R. A. 385; Clark v. Wilmington & W. R. Co., 14 S.E. 43, 109 N.C. 430, 14 L. R. A. 749; Daniels v. New York & N.E. R. Co., 28 N.E. 283, 154 Mass. 349, 13 L. R. A. 248, 26 Am. St. Rep. 253. Plaintiff (appellant) contends that this should not be the rule, even as to trespassers, and Thompson on Negligence is cited as authority for the contention. The contention may be supported by the authority cited; but such rule has been the uniform holding of this court, and, unless there appear cogent reasons for a departure therefrom, it should not now be changed. We have discovered no sufficient reason for changing the rule, and decline to overrule our many cases on the subject.

But there is another phase of this case. While the track of a railroad cannot be converted into a road for ordinary travel and the mere usage or custom of crossing the track at any particular point does not give rise to the duty to keep a lookout, yet, as said in Savannah & Western Railroad Co. v. Meadors, 95 Ala. 137, 140, 143, 10 So. 142: "When a railroad track runs through parts of a city, town, or village which are thickly populated, and where the demands of trade and public intercourse necessitate the frequent crossing of the track, it is the duty of those operating an engine along the track in such places to keep a lookout. This duty to keep a lookout for persons is not specially imposed by statute, but arises from the likelihood that in such places there are persons on the track, and the bounden duty to duly guard against inflicting death or injury in places and under circumstances where it is likely that injury may result unless care be observed. The duty arises when the circumstances exist which call for its exercise * * * and when they are known to those operating the train." Nave v. A. G. S. R. Co., 96 Ala. 264, 11 So. 391; L. & N. R. R. Co....