Frazer v. South & N.A.R. Co.

• Decision Date: 12 January 1887
• Court: Alabama Supreme Court
• Parties: FRAZER, Adm'r, etc., v. SOUTH & NORTH ALABAMA R. CO.

1 So. 85

81 Ala. 185

FRAZER, Adm'r, etc., v. SOUTH & NORTH ALABAMA R. CO.

Supreme Court of Alabama

January 12, 1887

Appeal from circuit court, Chilton county.

Action for damages for personal injuries.

The opinion of the court states the facts so far as necessary to a correct understanding of the principles involved in the case.

Troy, Tompkins & Loudon, for appellant.

Jones & Falkner, contra.

CLOPTON J.

The charges requested by the plaintiff base his right to a recovery, notwithstanding his intestate was walking on the track of the railroad at the time he was injured, on the mere hypothesis that he was not aware of the approach of the train until it was too late for him to leave the track, and that the accident would have been avoided if the persons in charge of the train had exercised ordinary care in giving the reasonable and usual signals of its approach after they discovered deceased on the track, or ought to have discovered him if they had kept the proper lookout. The duty to give the signals is not restricted to the time when the peril of the deceased was discovered, or ought to have been discovered; but the charges assert that the duty arises when the persons in charge of the train, by a proper lookout ought to have discovered the deceased on the track, though he may not have been in immediate peril, and that the omission to discover and give the signals, under the circumstances disclosed by the evidence, is negligence per se, sufficient to charge the defendant with liability for the injury. In order to sustain the charges, it is necessary to maintain that the omission to keep a proper lookout and to discover was not only negligence, but negligence of which the plaintiff's intestate would have a right to complain if death had not ensued.

It being an undisputed fact that the plaintiff's intestate was walking on the track of the defendant's railroad without right, for his own convenience, the record involves the consideration of the relative and respective rights, duties, and liabilities of the defendant operating trains, and of a trespasser on the track. At the place where the deceased was killed, the defendant was entitled to the free, unobstructed, and exclusive use of the road-bed for its appropriate purposes. Persons cannot, as matter of right, convert the general track to the uses of ordinary travel or passage. Though the engineer may have actually discovered the deceased when the train arrived at the point of an open view, of 300 yards or more, he would have been authorized to presume that, prompted by the instincts of self-preservation, the deceased would leave the track, and place himself beyond the reach of danger in time to escape injury, and would not have been bound to stop or check the train unless and until the circumstances made apparent that deceased was unaware of its approach, or was unable to extricate himself from the perilous position. Mobile & M. R. Co. v. Blakely, 59 Ala. 471. The duty of lookout is commensurate with the probable occurrence of obstructions and other dangers, and arises, as to human beings not being passengers, when the train is approaching a public crossing, or passing through the streets of a city, town, or village. The duty also exists as to live-stock, which, by their habits and experience, furnish reason of apprehension of obstruction; the owner not being regarded as a trespasser. Alabama G. S. R. Co. v. Jones, 71 Ala. 487. But the company may act on the presumption that an intelligent being of discreet years will not assume the risk of trespassing on the right of an unobstructed track; or, if he does, that he will use proper and appropriate means to ascertain and avoid any threatening danger. While it is the general duty of a railroad company to keep a proper and vigilant lookout for obstructions and other dangers, including, it may be, trespassers, it is not an absolute and particular duty to an intruder upon the track, so far as to constitute the omission to discover him, and to give the cautionary signals, negligence per se as to such intruder. McAllister v. Burlington & N.W. Ry. Co., 19 Amer. & Eng. R. Cas. 108; Louisville & N. R. Co. v. Greene, Id. 95; Terre Haute & I. R. Co. v. Graham, 12 Amer. & Eng. R. Cas. 77. We do not wish to be understood, from what we have said, as holding that no duty devolves on those in charge of a moving train when they see a person walking on the track. In such a case a due regard for human life, and due precaution against unnecessary injury, require the usual signals of warning to be given. The rules we have stated are intended to apply, and apply only, when the person is not discovered.

No neglect of duty on the part of a railroad company in moving trains will excuse a person who steps or walks on the track from using his senses of sight and hearing, if available. What care would have been required of those in charge of the train if they were cognizant of the partial deafness of the deceased, it is unnecessary to decide, as it is not shown that it was known to them. In the absence of proof showing that the employes were informed of his deafness, he must be regarded, so far as the duty of the defendant is concerned, as in the full possession of his faculty of hearing. Louisville & N. R. Co. v. Cooper, 6 Amer. & Eng. R. Cas. 5. In the direction from which the train was approaching, the track was straight, and the view clear, for a distance of from nine hundred to a thousand feet from the place where the deceased was struck. His eye-sight was good. There was a foot-path or private way on either side of the railroad, by which a person, going to the mill to which he was then going, could easily cross the track. It was the duty of the deceased to have extricated himself from the perilous position, if feasible by the exercise of ordinary care. If the use of his faculty of sight would have given him sufficient warning to have enabled him to avoid the danger, he cannot complain of any antecedent negligence of the defendant in failing to discover him, or in failing to give the usual signals. The defect of the charges requested by the plaintiff consists in their tendency and legal effect to withdraw from the consideration of the jury the defense of contributory negligence, as to which there could have been no serious controversy on the evidence, and to rest the legal proposition asserted on the doctrine of comparative negligence, which has been discarded by our decisions.

A material qualification of the doctrine of contributory negligence has been established, founded on the universal duty which each member of the community owes to every other member. The duty arises in cases like the present, when those in charge of the moving train become aware, or are in a condition when they ought to become aware, of the peril of the person, though he may be a trespasser on the track. The nature and extent of the qualification-the degree of care, and the character of the acts or omissions, requisite, in such cases, to acquit the defendant of legal responsibility for the injury-constitute the main contention between the parties. The rule, as enumerated by some of the authorities, is expressed, in terms, that the defense of contributory negligence is overcome if the defendant, by the exercise of reasonable care and prudence, could have averted the injury at the time it was committed; and by others that the misconduct of the defendant, which produces the injury, must be wanton or reckless or intentional. The appellant insists that the rule first stated has been approved by the decisions of this court.

This question has been considered in several cases, and, though some of the later decisions may seem to be in conflict, they are reconcilable on reason and principle. The statement of the general principle, as made in Government St. R Co. v. Hanlon, 53 Ala. 70, was modified in Tanner v. Louisville & N. R. Co., 60 Ala. 621, as follows: "The word 'and' between the words 'wanton' and 'intentional' should be 'or.' Either wanton, reckless, or intentional injury done, overcomes the defense of contributory negligence." In the latter case, the deceased was riding on the track in a cut, when the train approached. He endeavored to escape the danger at a crossing near or at the mouth of the cut, when his horse threw him, and it became manifest that he was unable to extricate himself from the peril. It is held that in such case, if the person endangered is employing proper care and diligence to escape the danger to which his previous negligence had exposed him, the failure of those in control of the train to apply proper skill and diligence to avoid the injury, if a prompt resort to such skill and diligence might have prevented it, is wanton or reckless negligence, for which the railroad will be held accountable. The effect of the decision is not to disturb or alter the general rule as modified...