Georgia Pac. Ry. Co. v. Lee

• Citation: 9 So. 230,92 Ala. 262
• Parties: GEORGIA PAC. RY. CO. v. LEE.
• Decision Date: 28 April 1891
• Court: Supreme Court of Alabama

9 So. 230

92 Ala. 262

GEORGIA PAC. RY. CO. v. LEE.

Supreme Court of Alabama

April 28, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by R. N. Lee against the Georgia Pacific Railway Company to recover damages for the killing of two mules and the destruction of a wagon, caused by collision with a train. Upon the evidence as adduced, the court, in its general oral charge to the jury, among other things, charged them as follows: "If it appears that the road on which the driver was crossing the railroad was a public road, and that they would have discovered a person in peril on the track, by the use of proper diligence keeping a lookout, in time to have avoided the accident by the use of all proper means to stop the train, and that they failed to keep such a proper lookout, in that event they would be liable for injuries proximately resulting from such negligence, if the jury should further find that the driver used due diligence in extricating himself and wagon and team after he discovered the danger; because the duty is resting upon those in charge of the train to keep a lookout in such places, and it is not permitted them to shut their eyes, and then say the person on the track ought himself to keep a lookout for the train before going upon the track, and that they did not see him and are therefore excusable." And again: "If it appears to the jury that this was a public road crossing, and that they saw the peril of the person upon the track, or if they had been diligent would have seen him upon the track and discovered his peril, in time to avoid the accident, then the plaintiff would be entitled to recover for injuries proximately resulting from such negligence, provided he used proper diligence to escape injury after being apprised of his danger." And again as follows: "A person going upon the track under such circumstances, and at such crossing, is not chargeable with contributory negligence, provided he tries to get out of the way, in cases where it appears that the employes saw him in peril, and failed, on their part, to use all the proper means to stop the train and avoid the accident; or when it appears they would have seen the person if they had been using proper caution in respect to keeping a lookout, in time to have avoided the accident." The defendant separately excepted to each of these parts of the general charge. At the request of the plaintiff in writing the court gave the following charges: (1) "If the jury believe that the injuries occurred at a public road crossing and that such injuries could have been avoided by the defendant's servants on said train keeping a diligent lookout, then the plaintiff would be entitled to recover, if the driver of the team attempted to escape after discovering his peril." (2) "If the jury believe from the evidence that the injuries testified about occurred at a public road crossing, and if they further believe that the bell was not rung or whistle blown at intervals while the train was approaching the crossing, and that such failure to give such signals essentially contributed to bring about such injuries, then the plaintiff would be entitled to recover, unless the jury further believe that the driver of the team was guilty of contributory negligence in going on the track, and the plaintiff would be entitled to recover notwithstanding such negligence, if the injuries were inflicted recklessly, wantonly, or intentionally." (5) "Even though the jury may believe that the defendant's servants used all means within their power to avert the injury after the peril of the plaintiff's team was discovered by them, yet if they further believe that the defendant's train which inflicted the injury (if the injury was inflicted by such train) was being run and conducted by the defendant's servants in a recklessly negligent manner, and that injury to plaintiff's team proximately resulted therefrom, then the jury must find for the plaintiff, even though they should believe that the driver of the team was guilty of negligence in going upon said railroad, if such driver used all means in his power to get the team out of the reach of danger after discovering his peril." The defendant severally and separately excepted to the giving of each of these charges; and also duly excepted to the refusal of the court to give the following charges, among many others, which were asked for the defendant: (5) "If the jury believe from the evidence that the manifestation of the peril of the wagon and team and occupants of the wagon, and the collision between them and the train, was so close, in point of time, that the train could not have been stopped in time to have avoided the collision, then the defendant's agents in charge of said train cannot be deemed guilty of wanton, reckless, or intentional misconduct." (11) "Neither the placing of the cars on the side track or side tracks, as shown by the evidence, nor a failure to ring the bell of the engine or blow the whistle, nor the speed of the train, before the peril of the team and driver became manifest, or ought to have been manifest, under the evidence, is evidence of wanton, reckless, or intentional misconduct on the part of defendant's servants." Judgment for plaintiff. Defendant appeals.

James Weatherly, for appellant.

Cabaniss & Weakley and White & Lane, for appellee.

MCCLELLAN J.

This is an action for injury to a wagon and team by collision therewith of a train of the defendant (appellant) railway company at a road crossing. The collision occured at the intersection of Sixth avenue and Twenty-Seventh street. This street, for at least a block on either side of said avenue, is occupied entirely by three tracks of the defendant's railroad; and the avenue, which is not open beyond these tracks, if indeed it extends any further than the line of the street next to the city, constitutes, at most, a public road crossing, which branches off to the right and left as soon as the tracks are cleared. The middle is the main track, and the side track on either hand is only a few feet from it; just far enough, it seems, for passing cars to safely clear each other. The railroad ran north and south. Plaintiff's wagon approached the crossing by a road which ran parallel with the railroad on the east, and within 15 or 20 feet of the east side track, and turned sharply to the west, opposite the crossing. On the side track next to this road, and extending up to the crossing, cars were standing; but whether they were flat-cars or box-cars, and consequently whether the driver of plaintiff's wagon could see moving cars on the main track over them, the evidence is conflicting. The evidence is also in conflict as to whether the driver stopped at all near, and before going upon, the crossing. Plaintiff's evidence tends to show that just before turning into the crossing, and when within 25 or 30 feet of the point where the main track crosses the road-way, the driver stopped for the purpose of sending back about 100 feet for some articles which he had left, and, while awaiting the return of his errand man, he listened for approaching trains; but that he could not see the main track, or whether any train was approaching on it, because of intervening box-cars on the side track; and that upon the return of his messenger, hearing no noise as of moving cars, he drove immediately into the crossing, and onto the main track, and did not and could not see the train which was being backed along that track from the direction in which the cars on the side track extended, until he had gotten past the end of the box-car next to the road he was traveling, by which time his mules were on the main track, where they were almost instantly struck by the cars which were being driven along there by an engine at the other end of the train, several hundred feet away. On the other hand, defendant's evidence goes to show that the driver did not stop at all on approaching the crossing, either to listen or look for moving cars, but drove heedlessly upon the main track, in front of the train; and that had he looked he might and would have seen the train, and had he listened he would have heard it, and thus been apprised of the danger in time to have averted the disaster. The evidence was also conflicting as to defendant's negligence, tending to show, in one aspect, that signals with bell and whistle were omitted, and that a very negligent rate of speed was maintained; and, in the other, that the train was moving at a slow pace, and the usual and requisite signals were given. There was no evidence that the trainmen saw the wagon and team approaching the track in time to have stopped the train short of the point of collision, nor does it appear that they omitted any effort to that end after they became aware of the peril of the wagon, mules, and driver. There are conflicts in the testimony as to whether the trainmen could have seen the wagon before it went upon the crossing, as to signals, and as to the rate of speed at which the train was being run when the wagon was first seen by the employes of the defendant, the witnesses varying from 4 to 20 miles per hour.

The defenses relied on were the general issue and the contributory negligence of the plaintiff's driver. The rulings of the trial court which are presented for review relate only to the defense of contributory negligence, and matters in replication thereto; the position of plaintiff being that there was evidence tending to show such gross negligence on the part of defendant's employes as would entitle him to a recovery, notwithstanding the driver's own negligence may have contributed to the injury. The evidence as to whether the driver stopped at all as he approached the crossing is, as we have seen, conflicting. One aspect...