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

• Decision Date: 22 March 1928
• Docket Number: 1 Div. 493
• Citation: 217 Ala. 639,117 So. 223
• Parties: GULF, M. & N.R. CO. v. HAVARD.
• Court: Alabama Supreme Court

117 So. 223

217 Ala. 639

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

1 Div. 493

Supreme Court of Alabama

March 22, 1928

Rehearing Denied May 31, 1928

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action for damages for personal injuries by Frances L. Havard against the Gulf, Mobile & Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

J.G Hamilton, of Mobile, for appellant.

Outlaw Kilborn & Smith, of Mobile, for appellee.

SAYRE J.

This case went to the jury on counts 3 and 4 of the complaint, and there is no need to consider errors supposed to have affected the case as stated in counts 1 and 2.

In our original opinion it was stated that plaintiff, appellee stepped on the covering of a hole which was in a public street or highway near the corporate limits of the city of Mobile, and also--as we understood--in defendant's right of way at or near the point where defendant's tract crossed the highway. On rehearing it appears that the foregoing statement is not accurate. Perhaps we were misled by the maps of the locus in quo, which are to be found in the transcript of the record and in the briefs on either side. On closer examination we find the facts to be: The railroad track, running northwest and southeast, crosses the extension of Government street, shown in the maps as "Government Street Road," which runs east and west. Defendant railroad company had acquired its right of way southeast of the road, so to speak of Government street road, by condemnation, which, in terms, as the record discloses, extended to the south line of, but not across, the road. The right of way to the northwest was acquired by purchase and was bounded on the south side, or extremity, by the north line of the road. The hole was in the road about midway between defendant's track and the northeast boundary line of its right of way, if that right of way be taken and considered as laid across the width of the road. The complaint alleges nothing to the contrary. It (count 3), after describing the location of the hole, alleges that "defendant's servants or agents, acting within the line and scope of their employment by defendant, covered said hole in such a manner to apparently afford a safe place for pedestrians to walk thereon and so covered said hole in such a negligent manner that it was unsafe for a person to step thereon, and as a proximate consequence of such negligent act" the plaintiff stepped, etc., and was hurt. The corresponding allegation of count 4 is that--

"Defendant's servants or agents, acting within the line and scope of their employment by defendant, negligently placed a board or boards over said hole without fastening it or them securely in place, and so placing said board or boards as to afford an apparently safe passageway for pedestrians, and the plaintiff while walking along said roadway at said point" stepped, etc.

Defendant's demurrer, as presented in the brief, takes the point that the facts alleged are insufficient to raise a duty on the part of defendant to repair the hole, and, in consequence, the allegation that defendant's agent or servants were acting within the line and scope of their employment in so doing appears on the face of the complaint to be repugnant to the rest of the complaint. In short, the argument is the alleged hole was not on defendant's right of way, and since at the place in question defendant was under duty to maintain its roadbed only, the complaint discloses two defects in plaintiff's case one growing out of the other, both operating to the same conclusion, viz. Defendant, in the circumstances alleged, was under no duty; defendant's agents or servants were not acting within the line and scope of their employment.

It cannot be denied that railroad companies are required to keep the approaches to their tracks, as well as the tracks themselves, at public crossings, in good repair. Pratt Coal & Iron Co. v. Davis, 79 Ala. 308; Southern Railway v. Morris, 143 Ala. 628, 42 So. 17. Each crossing presents different conditions and problems, but the general rule is that the company must do whatever is reasonably necessary to be done for the safety and convenience of travelers using the crossing. 3 Elliott on Railroads (2d Ed.) § 1107. Proper approaches and embankments necessary to enable the traveler to reach and leave the crossing are a part of the crossing, and the company is under duty to construct and maintain them. Id.; Southern Railway v. Morris, supra.

We presume defendant's railroad was constructed under authority of law. The right to build across highways is to be implied, if not expressly granted. Inhabitants v. Port Reading, etc., R.R. Co., 49 N.J.Eq. 11, 23 A. 127. In the situation thus shown it was the duty of defendant railroad company to preserve the lateral support of the intersecting road as constructed and operated for public use. Haverstraw v. Eckerson, 192 N.Y. 54, 84 N.E. 578, 20 L.R.A.(N.S.) 287. This is nothing more than an adaptation to the particular environment of the general rule that railroads are required to keep the approaches to their tracks in safe repair. And this duty existed, whether or not defendant's right of way be held to include or cover so much of the road as lay within the outer lines of its right of way, if projected across the road, and it is not necessary for the purposes of this case to say whether the road within the limits of the outer lines of the right of way, if extended across the road, was a part of the right of way. In either event it was the duty of the defendant to give lateral support to the road, whether the need for such support was brought about by the fact that the road had been elevated above the adjoining right of way or the right of way had been lowered below the road by excavation.

In view of the principle of law stated above and our rule of pleading in such cases, which permits great generality of allegation little short of mere conclusion, plaintiff would have been allowed to prove that her injury was caused by a hole in the road produced by defendant's dereliction in respect of its stated duty in the premises. It follows, therefore, that the complaint did not appear to be repugnant in itself, as the demurrer alleged, by reason that it alleged defendant's agents or servants in the matter of repairing the hole acted in the line and scope of their employment. In other words, the other facts alleged do not contradict the complaint, wherein it alleges that defendant's agents or servants were acting within the line and scope of their...