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

• Decision Date: 10 April 1919
• Docket Number: 6 Div. 823
• Citation: 203 Ala. 3,81 So. 671
• Parties: FAYET v. ST. LOUIS & S.F.R. CO. et al.
• Court: Alabama Supreme Court

81 So. 671

203 Ala. 3

FAYET v. ST. LOUIS & S.F.R. CO. et al.

6 Div. 823

Supreme Court of Alabama

April 10, 1919

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Action by M.A. Fayet against the St Louis & San Francisco Railroad Company and others for injuries in a crossing accident. Judgment for defendants, and plaintiff appeals. Affirmed.

W.A Denson, of Birmingham, for appellant.

Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellees

THOMAS J.

The suit was for damages alleged to have resulted from a collision between an automobile driven by the plaintiff and one of defendant's trains. It occurred at a public railroad crossing within the corporate limits of the city.

The complaint contained counts for simple negligence and for wanton conduct in the improper operation of the train. To these counts pleas of contributory negligence were interposed and demurrer sustained thereto, in so far as they purported to answer the wanton count. No demurrer was directed to said pleas as answer to the simple negligence count. A trial on the merits resulted in a verdict and judgment for defendant.

It is unnecessary to discuss in detail the evidence. We have carefully considered it and are of opinion that plaintiff should not have recovered under the simple negligence count. A.C.L.R.R. Co. v. Jones, 80 So. 44; Rothrock v A.G.S.R.R. Co., 78 So. 84; Bailey v. Sou. Ry Co., 196 Ala. 133, 72 So. 67; A.G.S.R.R. Co. v. Smith, 191 Ala. 643, 68 So. 56; L. & N.R.R. Co. v. Turner, 192 Ala. 392, 68 So. 277; Sou. Ry. Co. v. Irvin, 191 Ala. 622, 68 So. 139; Bason v. A.G.S.R.R. Co., 179 Ala. 299, 60 So. 922; L. & N.R.R. Co. v. Williams, 172 Ala. 560, 55 So. 218; L. & N.R.R. Co. v. Calvert, 172 Ala. 597, 55 So. 812; C. of G. Ry. Co. v. Barnett, 151 Ala. 407, 410, 44 So. 392; C. of G. Ry. Co. v. Foshee, 125 Ala. 199, 212, 27 So. 1006. No element of subsequent negligence being made an issue in the case, these observations made in Rothrock v. A.G.S.R.R. Co., supra, have application to the facts before us:

"It was shown without dispute that this driver did not stop, or attempt to stop, his machine before permitting it to proceed to a point where the approach of the train could be observed and the danger from collision therewith averted. If the approach of the train could not have been seen or heard, because of obstructions in that direction, before the car reached the right of way, then the driver's duty was to not permit the car to proceed to a point where the approach of the train could not be observed or noted in time to avoid the danger. L. & N.R.R. Co. v. Williams, 172 Ala. 560, 55 So. 218; Foshee's Case, supra; C. of Ga. v. Barnett, 151 Ala. 410, 44 So. 392."

Consideration of the evidence will show no conflict as to whether the bell of the engine was ringing while the train approached and reached the crossing. The plaintiff, his son, and his wife, as witnesses, testified only that they heard no bell. This was a probable fact in view of the plaintiff's own admission that he did not stop his automobile or cut off his engine before going near or on the track. The engineer and fireman in charge testified that the necessary and required signal was given at said time and place.

Of the speed of the train when approaching the crossing, there was no material dispute of the fact that it approached the crossing at a very low rate of speed--from 4 to 8 miles an hour. Defendant's witnesses variously estimated the speed to have been between 4 and 6 miles, and plaintiff testified that it was 6 or 8 miles an hour. The other occupants of the car at the time of the collision made no estimate of said speed and testified to no fact thereof contrary to the foregoing. It is true that one McCarty, a former engineer, testified that, from the distance required to stop train, it must have been running 25 miles per hour; yet that witness admitted that he had never run a "mallet compound" engine (called a "double ender"); that he had run a "consolidated" on the L. & N., and with a freight train of 21 cars, at a crossing practically level, going at the rate of 5 or 6 miles an hour, all air brakes on the cars in perfect order, he could stop such train at such place instantly. This witness, though testifying, "All I have got to do is to apply the brake and stop just like that (indicating), *** stop that quick (snapping his fingers)," admitted that the ability to stop so quickly as indicated was dependent upon whether the cars propelled were loaded or "empties," whether the track was wet or dry, and that a difference of two miles an hour in the speed of the train would make little difference as to the distance in which the stop could be made.

When the whole evidence is considered, it is not disclosed whether the track, at the time and place, was wet or dry; whether the 21 cars being propelled were loaded or empty; and whether the engine propelling the train was a "mallet compound," "consolidated," or other and different make. In the absence of evidence of such material conditions indicated by Mr. McCarty, as entering into the distance in which a stop may be made when the train is proceeding at a given rate of speed per hour, it may be that witness' judgment of the distance in which defendant's train, propelled at 6 or 8 miles an hour, could have been stopped, or the rate of speed such train was proceeding that required the given distance within which to stop, was not in material conflict with the positive evidence of the only eyewitness on the question of speed at which defendant's train was actually proceeding before and when the collision occurred. The common or judicial knowledge of courts and juries as to such question is a reference to the ordinary observations of the law of nature or physics as to power and weight affecting momentum. In connection with the evidence, no doubt this universal fact was looked to by the jury in consideration of the question of the speed of defendant's train and the ability to stop such a moving train within the given space to or from the point of collision. Plaintiff further testified, in part, as to the locus in quo, as follows:

"I am acquainted with the extent to which that crossing was used about the 2d day of last September. I couldn't say about how many people used that crossing every 24 hours, because it is thickly populated, and I am never down there close to the road; but, generally, the way they pass by the house, there are a good many machines. *** A good many people use it going to and from work, going to their work at Pratt City and Thomas. This accident occurred about 7 or 7:30, and the usage of it is slacker at that time"--that is, at the time of the collision.

There was other evidence tending to show that this crossing was used by a number of people--between 300 and 500 persons--crossing over in 24 hours; but with what frequency the crossing was used (as to time of the day) is not otherwise shown than by the plaintiff himself, who testified on direct examination that at the time of the accident "the usage of" the crossing "is slacker." The testimony did not show that the crossing was ever crowded, or that any confusion of traffic existed there at any time of the day or night. As a matter of fact, the evidence showed that the highway was not strictly a street, but merely a suburban macadamized road.

Among other things, plaintiff testified of the location of the tracks and obstructions standing on the same as follows:

"That first track and the main track where I was struck are about six feet apart. The train was backing, going towards Pratt City. You can see the other track along here (indicating).

"Q. Was that car yonder to your right as you were going across and that bunch of cars to the left? A. That bunch of cars was to the left, the big bunch as I was going across and this single car that it knocked me up against was on the right on the third track, and the train was going that way, coming towards Birmingham from the direction of Amory, Miss. The train that struck me was coming from the direction of the whole string of cars. *** I

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