Gulf, M. & N.R. Co. v. Fowler

• Decision Date: 14 November 1922
• Docket Number: 1 Div. 454.
• Citation: 96 So. 87,19 Ala.App. 163
• Parties: GULF, M. & N. R. CO. v. FOWLER.
• Court: Alabama Court of Appeals

96 So. 87

19 Ala.App. 163

GULF, M. & N. R. CO. v. FOWLER.

1 Div. 454.

Court of Appeals of Alabama

November 14, 1922

Rehearing Denied April 3, 1923.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action for damages by Julia Fowler against the Gulf, Mobile &amp Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Count 2 of the complaint, upon which the cause was tried, charged, in substance, that defendant operated a line of railroad in the city of Mobile; that on the occasion in question plaintiff was lawfully crossing this line of railroad, at a public street crossing, in her automobile that while plaintiff was in a place of danger on or near the track an engine and train of defendant, operated and controlled by its servants or agents in the line and scope of their authority, was approaching the crossing at such a distance therefrom as to permit of the stopping or slowing of the engine and avoidance of injury to plaintiff, and that though said servants or agents knew of plaintiff's peril and had means at hand of stopping or slowing the train, they negligently failed to use such means, but negligently permitted said engine or train to run against plaintiff's automobile, causing the injuries alleged.

Plaintiff, as a witness, testified, in effect, that as she approached the crossing she was moving slowly; then when she came nearly upon the track she discovered the train approaching some 280 or 290 feet down the track; that she observed that, at the point where she stopped, the "bumper" of the automobile extended beyond the first rail, and, with the purpose of reversing the car, pushed the lever into "second," by mistake, and accelerated the motor, whereupon the car shot forward and was struck by the engine. Further testifying, on cross-examination, the plaintiff said:

"As to whether I told Dr. Jackson when he came to see me in the afternoon that, when I first saw the train, it was about 20 feet away and that I did not know what happened, will say I don't remember saying that."

Defendant then asked the witness: "You may have said that?" To this question plaintiff objected, the court sustained the objection, and defendant excepted.

Charges 1, 2, and 3 given at plaintiff's request, are as follows:

"1. I charge you, gentlemen of the jury, if the servants or agents of a railroad company in charge of a train of cars sees a vehicle on the track, or dangerously near to it, and sees that the driver of the vehicle is either ignorant of the approach of the train or driving without regard to it, it is the duty of the servants or agents of the train to so regulate the speed of the train as to be able to immediately stop it, and to actually stop it in time to prevent injury, if that becomes necessary, and if they fail to do so and damage results by reason thereof, the railway company is liable therefor, for damages claimed by the complaint, and proved, not exceeding amount claimed. In such a case, if the vehicle is on or dangerously near the track through the negligence of the driver, such negligence is a remote, not proximate, cause of the injury.

"2. I charge you, gentlemen of the jury, if the plaintiff's peril was discovered in time to avoid the injury by the exercise of due care on the part of the defendant, and the injury was the result of its failure to perform its duty in this respect, plaintiff would be entitled to recover, although she may have been guilty of culpable negligence in the first instance.

"3. I charge you, gentlemen of the jury, if you are reasonably satisfied from all the evidence that the plaintiff was on or so near the railroad track of the defendant's company as to be in danger of being struck by a passing train, and this fact known to the servants or agents in charge of train of the defendant in time for the said servant or agent of defendant to have stopped or slowed the train so as to have avoided a collision, and the defendant's train was not stopped or slowed and the collision occurred, then you must find for the plaintiff for such damages as the evidence shows was sustained claimed in complaint."

The following charges were refused the defendant:

"13. If the jury are reasonably satisfied from the evidence in this case that the plaintiff negligently failed to stop look, and listen before attempting to cross the track, within the space that would have been sufficient to enable her to stop said automobile before going on said track, in the event she discovered the train approaching, and that this proximately contributed to the injury, you cannot find for the plaintiff unless the engineer, after the fireman or he became conscious of the peril of plaintiff or the automobile, had time to stop the engine before striking it or her by the skillful use that a skillful engineer could have made of all means at hand to stop said engine.

"15. The court charges the jury that, where one, without stopping, looking, or listening at a public crossing before attempting to cross or putting herself in peril, the railroad company owes her no duty except the exercise of reasonable care and diligence to avoid injuring her or her property as soon as her peril becomes evident.

"16. If you are reasonably satisfied from all the evidence in this case that the plaintiff failed to stop, look, and listen before reaching a place where she would be struck by the train in passing, and that she then attempted to drive across the track in front of the approaching train, and that all of this proximately contributed to the injury, you cannot find for the plaintiff unless the engineer, after he or the fireman became conscious of the peril of the plaintiff or her automobile, had time to stop or slow down the engine before and so as to avoid striking her or said automobile by the skillful use that a skillful engineer could have made of all the means at hand to stop the engine.

"18. The court charges the jury that, if the plaintiff drove from a place of safety in front of an approaching train and so close thereto that the engineer could not, by the use of all means known to skillful...