Gulf, M. & O.R. Co. v. Sims, 6 Div. 436

• Decision Date: 05 November 1953
• Docket Number: 6 Div. 436
• Citation: 260 Ala. 258,69 So.2d 449
• Parties: GULF, M. & O. R. CO. v. SIMS.
• Court: Alabama Supreme Court

Page 449

69 So.2d 449

260 Ala. 258

GULF, M. & O. R. CO. v. SIMS.

6 Div. 436.

Supreme Court of Alabama.

Nov. 5, 1953.

Rehearing Denied Jan. 21, 1954.

Dominick, Rosenfeld & Nicol, Tuscaloosa, for appellant.

F. F. Windham and Jas. L. Marshall, Tuscaloosa, for appellee.

MERRILL, Justice.

This is an appeal from a judgment in favor of plaintiff in a suit based upon a collision between plaintiff's automobile and defendant's locomotive at a public crossing on Fifteenth Street in the City of Tuscaloosa.

The case went to the jury on three counts, all of which charged simple negligence. Count 1 charged that defendant negligently caused the railroad engine to collide with plaintiff's automobile; count 4 charged that defendant was negligent in allowing or permitting a hole or holes to be in its roadbed between the rails on the crossing; count 5 charged defendant with negligently causing, permitting or allowing the tracks and roadbed across Fifteenth Street to be and remain in an unsafe and dangerous condition. Defendant's plea was in short by consent.

Defendant argues assignments of error 2, 3, 5 and 6, 7 and 8, and 9 and 14.

Assignment of error 2 charges that the court erred in overruling the demurrer to count 4 in that said count did not aver or show the existence of any duty owed by the defendant to plaintiff. We think the demurrer was properly overruled. The defendant owed a duty to the public to keep the part of the street occupied by it in a safe condition. Montgomery St. Ry. Co. v. Smith, 146 Ala. 316, 39 So. 757; Title 37, § 648, Code 1940.

Assignment of error 3 charges that the court erred in overruling the demurrer to count 5 in that said count did not aver or show the existence of any duty owed by defendant to plaintiff, and defendant cites the case of St. Louis & S. F. R. Co. v. Jamar, 182 Ala. 554, 62 So. 701, in support of this contention. A careful study of that case will disclose that the plaintiff there fell in a hole between trestles of two distinct railroads; that there was no duty on the part of the defendant to cover that part of the street, and even though plaintiff sufficiently amended his pleading, still he could not recover, the evidence remaining the same. The demurrer was properly overruled.

Assignments of error 5 and 6 are argued together and complain of the ruling of the court sustaining objections to two questions propounded to appellant's witness Neilson as follows:

No. 5. 'Q. Were any repairs made on the warning flashing signal lights between the date of your last inspection before the accident and the date of the inspection after the accident?'

No. 6. 'Q. Were they in the same condition on January 29th as they were on January the 16th?'

There is no evidence in the record that the signal lights were examined on January 16th. All the testimony shows they were examined on January 19th and January 29th. It was therefore proper to sustain the objection to the question relating to the 16th. Assignment No. 6 being without merit, and No. 5 having been grouped with it in argument, the latter will not be considered. Taunton v. Trammell, 254 Ala. 252, 48 So.2d 190.

Assignments of error 7 and 8 relate to the ruling of the court on a question and answer. The same witness answered the identical question without objection earlier in his testimony (Record p. 189), and the error, if any, was rendered harmless, especially so since the answer was favorable to appellant. 2 Alabama Digest, Appeal and Error, k1033(3) and 1058(7).

Assignment of error 9 complains that the court erred in refusing to give the affirmative charge with hypothesis.

This brings us to a statement of pertinent parts of the evidence. Plaintiff testified that he was driving west on Fifteenth Street and after crossing the A. G. S. tracks, he stopped, looked and listened before crossing the tracks of defendant, which consisted in part of a sidetrack fartherest east and the main line 46 feet west of the sidetrack, both of which crossed Fifteenth Street in an approximate north-south direction. He further testified that he did not see or hear anything; that he was familiar with the crossing since he used it practically every day and night going to and from his home; that the flashing signal light was not working; that the pavement around the tracks was in bad shape; and after stopping, he started his car and his speed was up to 10 or 15 miles per hour when he noticed the train; that he hit a hole in the pavement of the street; that thereafter he was not able to control his automobile and it 'swayed and pulled into' the engine. He further testified that he was about 10 feet from the locomotive before he noticed it; that he was on the extreme right or north side of Fifteenth Street; that the locomotive was about four-fifths across the street and he could not say whether it was moving, whether its lights were burning or whether the bell was ringing. The left front of plaintiff's automobile struck the right front of defendant's locomotive, damaging both, and plaintiff received serious injuries to his left arm and shoulder.

Defendant's engineer testified that he was operating a diesel electric locomotive which was pulling three box cars, and that he was approaching the crossing at about two miles per hour, headed north; that there was no traffic except the automobile involved; that he noticed the lights of the automobile while he was 300 to 500 feet south of the crossing and there was nothing to obstruct his vision of the automobile from that point to the time of the collision; that when he first saw the automobile it was motionless and on the south side of Fifteenth Street (which would be the 'wrong' side of the street for an automobile going west), and the place where the automobile was stopped was 70 feet from the track on which the locomotive was proceeding. The paved portion of the street at this crossing was 34 feet wide. The engineer further testified that after he entered the intersection about 10 feet, the automobile started up and headed west augling from the south side of the street to the north side; that as the locomotive reached the center of the street, the automobile crossed the G. M. & O. sidetrack (46 feet away) and he slowed the locomotive to 1 mile per hour; that when the locomotive had gone about 10 feet past the center of the street, 'I saw I was going to have a collision and I applied the brakes to the emergency,' at which time the automobile was about 10 feet from the locomotive; that when the locomotive came to a stop about 5 feet from the north edge of the pavement and when it stopped, the left front of the automobile crashed into the right front of the locomotive, but its front wheels never got on the track; that the time was 11:20 P.M., the weather clear, cold and windy and all the flashing signal lights and bells were working and continued to flash and ring until the locomotive was removed some time later.

All the witnesses for both plaintiff and defendant who reached the scene of the collision before plaintiff was removed, testified that the flashing signal lights, which flashed whenever a train was approaching or on the crossing, were working. Plaintiff admitted that he had had two drinks of whiskey before 10:00 P.M. and there was evidence that he was intoxicated when he reached the hospital.

Many other witnesses testified but it is unnecessary for the purposes of this case to state the effect of their testimony.

We must hold under the undisputed evidence that plaintiff was chargeable with contributory negligence as a proximate cause of his injury, which defeats this action as for initial negligence, if any, on the part of the trainmen. Watson v. Birmingham Southern R. Co., Ala.Sup., 66 So.2d 903; Louisville & Nashville R. Co. v. Johns, 258 Ala. 440, 63 So.2d 574; Gulf, Mobile & Ohio R. Co. v. Sanders, 255 Ala. 386, 51 So.2d 531; Louisville & Nashville R. Co. v. Turner, 192 Ala. 392, 68 So. 277; Johnston v. Southern Ry. Co., 236 Ala. 184, 181 So. 253, 254. In the last case cited, the Court said:

'On the question of contributory negligence, it appears, without dispute, that the decedent was quite familiar with this crossing. The conditions relied upon as rendering it more hazardous to motorists only emphasize the importance of observing the duty to stop, look, and listen, and to have the automobile under control.

'This legal duty grows out of the well-known fact that a train cannot be stopped, or removed, if already on a crossing, with the same dispatch as a motorcar equipped as the law requires. It is a duty to see that the crossing is clear of danger from approaching trains, and even a more patent...