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

• Decision Date: 18 October 1928
• Docket Number: 1 Div. 449.
• Citation: 120 So. 159,218 Ala. 695
• Parties: GULF, M. & N. R. CO. v. PISTOLE.
• Court: Alabama Supreme Court

120 So. 159

218 Ala. 695

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

1 Div. 449.

Supreme Court of Alabama

October 18, 1928

Rehearing Denied Feb. 2, 1929.

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

Action for damages for personal injuries by Minnie Pistole against the Gulf, Mobile & Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. G Hamilton, of Mobile, for appellant.

Outlaw Kilborn & Smith, of Mobile, for appellee.

GARDNER J.

Mrs Pistole, appellee here, was a passenger in a touring car driven by her brother-in-law, one Curd, on the night of December 21, 1924, when the car upturned in a ditch, with the result that her collar bone was broken and other injuries sustained, not necessary here to detail. The ditch, which was about 10 feet wide and 6 feet in depth, was on the right of way of the Gulf, Mobile & Northern Railroad Company, a few hundred feet beyond the city limits of Mobile, and was spanned by a bridge some 18 feet in width, also on said right of way. Her suit against said railway company is based upon the theory that the place of the injury was a public road crossing and that the accident occurred by reason of the negligent failure of the railroad to maintain such crossing in a reasonably safe condition. There was verdict and judgment for the plaintiff, from which defendant prosecutes this appeal.

The following from Patterson v. S. & N. R. R. Co., 89 Ala. 318, 7 So. 437, quoted approvingly in Southern Ry. Co. v. Flynt, 203 Ala. 65, 82 So. 25, is here pertinent:

"If a railroad company constructs its road across a public road, or highway, the duty devolves upon it to put and keep the approaches and crossing in proper repair for the use of the traveling public. This duty will be sufficiently discharged if the highway is maintained in a reasonably safe and convenient condition, so as not to materially impair its usefulness, or interfere with its safe enjoyment by travelers, who exercise ordinary care and prudence for their own safety in using it."

Our decisions are to the further effect that the duty on the railroad, as above outlined, is a continuous one. So. Ry. Co. v. Morris, 143 Ala. 628, 42 So. 17; So. Ry. Co. v. Taylor, 148 Ala. 54, 42 So. 625; So. Ry. Co. v. Posey, 124 Ala. 486, 26 So. 914; N. C. & St. L. Ry. Co. v. Ragan, 167 Ala. 277, 52 So. 522.

Each count of the complaint upon which the cause was tried disclosed that the accident occurred on defendant's right of way, at a public road or highway crossing thereon, and that the accident was the proximate result of a breach of defendant's duty to maintain said crossing or approaches thereto in a condition reasonably safe and convenient for use by those traveling said highway. The demurrer to these counts was properly overruled. Authorities, supra; Gulf, Mobile & Northern R. Co. v. Havard, 217 Ala., 639, 117 So. 223.

The defendant's special pleas, to which demurrers were sustained, attempted to exempt defendant from liability upon the theory that the bridge referred to in the several counts of the complaint, was built and maintained by another or others than itself. In So. Ry. Co. v. Morris (Sup.) 42 So. 19, ^[1] speaking to this question, the court said:

"If the defendant and maintaining and using the railroad, it was its duty to keep the approaches in repair, whether constructed by it or not."

To like effect is So. Ry. Co. v. Taylor, 148 Ala. 52, 42 So. 625.

The assignments of error as to the action of the court in sustaining these demurrers are not well taken.

Defendant requested the affirmative charge, which was refused, and for a consideration of this assignment of error a very brief review of the evidence (omitting nonessential details) is necessary. Defendant's predecessor in title acquired the right of way (but not the fee) at the place in question from the owners, who also owned the adjoining lands on each side thereof. The road was constructed and in continuous operation more than 20 years prior to the accident; there was no road crossing at this point until some time after the track was first laid and within the period of 20 years prior to the accident. The owners of the adjoining land on each side subsequently built a bridge over the ditch on this right of way and fixed it so they might more easily cross over the track; the owners subsequently subdivided their property and they maintained the bridge and crossing until the storm of 1916, after which Mobile county proceeded to maintain the bridge and continued to do so to the date of the accident. The bridge in question was built by Mobile county in August prior to the accident in December, 1924. Mobile county had also had made and maintained the fill immediately south of the crossing, and the ditch had been under the control and maintenance of the county health authorities. The crossing had been used by the general public for about 16 years; the only connection defendant had therewith was in placing, within the last few years, planks between the rails, and placing a railroad crossing sign usually located at crossings, which there was evidence tending to show had been so placed a long number of years.

As we read and understand the record and briefs of counsel, the foregoing facts are without substantial conflict in the evidence. Nor do we understand there is any contention that the bridge itself was defective either in size or construction, as, under the undisputed proof, it was built in the same manner as are other bridges of that character in Mobile county. The objection was rather as to its location, as outlined by the following testimony offered by plaintiff. The car in which plaintiff was a passenger was traveling on Mohawk street, established by the uncontradicted evidence as a public street or highway in Mobile county, and at that time at this locality a few hundred feet beyond the city limits. The car was going north, and upon reaching the crossing waited for an engine to pass. The driver then proceeded with the car in low speed to cross defendant's tracks. The bridge is north of the tracks, some 11 feet by measurement of one witness and some few feet less by estimate of others. It was dark, and had been raining; the curtains to the car were up, the windshield wiper was in working order, and so were the car brakes and the lights. After crossing the tracks, upon reaching this bridge the right wheels missed the eastern edge of the bridge a very short distance and in that manner was caused to overturn into the ditch, resulting in plaintiff's injuries. Curd, the driver, insists this was the first time he had ever crossed at this point; that as the car approached the track the elevation of the embankment was such as to throw his lights upward so that he could not see the bridge on the other side and down grade from the track; that in order to run upon the bridge and not off to one side in the ditch, an immediate or sharp turn to the left is necessary as you reach the top of the track and there is nothing to indicate to one driving and unfamiliar with the situation that such a turn is necessary; and that one traveling with the road straight across and at right angles to the track would run into the ditch as he did on this occasion. Plaintiff offered other evidence in substantiation of Curd's testimony.

Defendant insisted that the road approaches the railroad at an angle and that the bridge was in line with the roadway travel; that the grade on each side of the track was gradual and that the diffused light of a car while on the track enabled a driver to see the bridge distinctly; that no turn to the left on the track was necessary, but that a car moving in the traveled was as indicated on the road would cross the track and on to the bridge without any turn to the left as indicated by plaintiff, and that Curd, the driver, left the traveled way south of the track. Defendant offered testimony of witness in support of this insistence as well also eight photographs of the crossing, taken considerable time after the accident, tending to like effect.

Plaintiff's theory really rests upon a deception to the traveler crossing the track from the south as to conditions on the north side, without guard rail or other warning that a sharp turn to the left was necessary in order to avoid the ditch, and without opportunity to discover such condition in time.

We are persuaded the evidence of plaintiff presented a jury question as to whether or not the condition of the crossing met the standard of duty resting upon the defendant as indicated in the authorities supra. So. Ry. Co. v. Flynt, supra; N. C. & St. L. Ry. Co. v. Ragan, supra.

Counsel further insist the affirmative charge was due defendant for the reason that the railroad was constructed and in operation prior to the establishment of any crossing, and that the duty of the railroad as to the maintenance of public crossings in a reasonably safe and convenient condition for travelers does not apply to a crossing created subsequent to the construction and operation of the road; that the duty is one imposed by common law and no such duty exists as to crossings established subsequent to the establishment of the railroad. In brief for appellant authorities are cited sustaining this contention. 33 Cyc. 285; Chicago, R.I. & P. R. Co. v. People, 69 Colo. 266, 193 P. 668; Rock Creek Township v. St. Joseph & G. I. R. Co., 43 Kan. 543, 23 P. 585; North. Cent. R. R. Co. v. Mayor, etc., of Baltimore, 46 Md. 425; B. & A. R. Co. v. Cambridge, 159 Mass. 283, 34 N.E. 382.

We are unwilling to follow in the wake of these authorities, and think the contrary rule as stated in the opinion of Justice Thomas in City of Birmingham v. L. & N. R. R. Co., 216 Ala. 178, 112 So. 742, is correct and...