Georgia Pac. R. Co. v. Blanton

• Decision Date: 10 July 1888
• Citation: 4 So. 621,84 Ala. 154
• Parties: GEORGIA PAC. R. CO. v. BLANTON.
• Court: Alabama Supreme Court

4 So. 621

84 Ala. 154

GEORGIA PAC. R. CO. v. BLANTON.

Supreme Court of Alabama

July 10, 1888

Appeal from circuit court, Cleburne county; LEROY F. BOX, Judge.

Action by Richard D. Blanton against the Georgia Pacific Railroad Company for damages for the killing of his infant child. Judgment for plaintiff. Defendant appeals.

James Weatherly and Aiken & Burton, for appellant.

Kelly & Smith and Smith & Lowe, for appellee.

CLOPTON J.

In April, 1887, appellee's infant son was killed by the locomotive and cars of appellant. The father brings the action to recover for the injury. When first seen, the child was standing on the outside of the railroad track, but near enough to be struck by the pilot in passing. The special defenses are that the defendant fulfilled its duty to the child in the matter of lookout and preventive effort, and contributory negligence on the part of the parent.

The first question raised, relates to the character and measure of duty of the defendant at the time and place and under the circumstances of the accident. In Railroad Co. v. Womack, ante, 618, (present term,) we announced, as the rule of liability, that, at localities where a railroad company has the right to the exclusive use of its roadway, it does not owe to a trespasser on its track the special duty to look out for and discover him,-the necessity therefor being produced by his own wrongful act which the company was not bound to anticipate; but, when those in charge of the train discover him while observing the general duty of lookout for obstructions, it is incumbent on them to use reasonable care to prevent injury. The corollary is that a trespasser cannot maintain a claim against the company for injuries suffered while trespassing on its road-bed, unless caused by wanton, reckless, or intentional negligence, as defined in Frazer v. Railroad Co., 81 Ala. 185, 1 South. Rep. 85. It was not intended to apply the rule thus stated to localities where public roads, streets, or highways cross the railroad track,-places at which both the company and the public have a right of way for their respective and appropriate purposes. Railroad corporations are authorized by statute to use cross, or change public roads when necessary in the construction or maintenance of their roadways, but are required to place the roads in a condition satisfactory to the authorities of the county having the control thereof,-a condition safe and convenient for use by the public. Code 1886, § 1581. Municipal authorities have power to regulate the running of trains or engines within the corporate boundaries, and to prohibit the standing thereof on or across the streets or highways,-to protect the public use by preventing unnecessary and dangerous obstructions. Section 1519. The use of public roads, streets, and highways obtained by railroad corporations is subject to their proper and lawful use by the public; the latter, however, being the servient use, yielding precedence to use by the company. The duties are mutual and reciprocal, and the same degree of care is exacted of both. It is incumbent on those in charge of a train to regulate its movements, and to exercise reasonable care and precaution, so as to prevent injuring any person who may be rightfully using a highway at a place where it crosses the railroad track. Such persons cannot be regarded as trespassers or intruders. Those having the control of a moving train are cognizant of the accustomed and authorized use of such localities by any of the public, are apprised that its movement, under such circumstances, is attendant with danger, and are bound to anticipate it, which devolves the correlative duty to use reasonable preventive care. Section 1699, Code 1876, which governs this case, prescribes positive regulations, imposing specific duties, in addition to those enjoined by the common law, which the engineer, or other person having control of the running of the locomotive on any railroad, is required to observe at specified times and places, and the failure to observe which subjects him to indictment and punishment. He is required to blow the whistle or ring the bell at least one-fourth of a mile before reaching any public road crossing, or any regular depot or stopping place; and to continue to do so, at intervals, until such crossing is passed, or such depot or stopping place is reached; and also to blow the whistle or ring the bell on entering the corporate limits of any town or city, and to continue to do so until he has reached his destination, or passed through such town or city. It may be here remarked that section 1144, Code 1886, extends the requirement so as to make it his duty to blow the whistle or ring the bell, at short intervals, on entering into or moving within or passing through any village, town, or city, whether incorporate or unincorporated. Section 1700, Code 1876, declares a railroad liable for damage done to persons, stock, or other property, resulting from a failure to comply with the requirements of the preceding section, or from any negligence on the part of such company or its agents. The statutes have been construed to render the company liable, not only for a failure to observe the statutory regulations, but, in addition, for any negligence on...