Highland Ave. & B.R. Co. v. Sampson

• Decision Date: 27 January 1891
• Citation: Highland Ave. & B.R. Co. v. Sampson, 8 So. 778, 91 Ala. 560 (Ala. 1891)
• Court: Alabama Supreme Court
• Parties: HIGHLAND AVE. & B. R. CO. v. SAMPSON.

8 So. 778

91 Ala. 560

HIGHLAND AVE. & B. R. CO. v. SAMPSON.

Supreme Court of Alabama

January 27, 1891

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

This action was brought by the appellee, Goode Sampson, against the appellant corporation, and sought to recover damages for the killing of his mule, and injury to his wagon.The injury was alleged to have been caused by the negligence of the employes or servants of the defendant corporation.One Grant the driver for the plaintiff, who was driving the mule and wagon at the time the accident occurred, testified as a witness for the plaintiff that he was approaching Twenty-Second street, on which the defendant railroad was running, from Avenue B; that on the left corner of Avenue B and Twenty-Second street, as he approached Twenty-Second street, there was a house, and around this house a shed which obstructed the view towards Avenue E, from which the dummy was coming; that he did not look up towards Avenue E but did look to the right; that when he first saw the dummy, it was only about 20 feet away from him; that he at once pulled the mule back, but the dummy struck the mule, and threw the mule and wagon around about the same time, while he tried to pull the mule back; that the dummy was running very fast, had no head-light, and did not blow the whistle or ring the bell.Defendant requested the court to give the following written charges, and excepted to the refusal to give them: "(1) That if the jury believe the evidence of the driver, then the plaintiff cannot recover.(2) If the jury believe all the evidence, then they should find a verdict for the defendant.(3) That, the complaint being against the defendant as a railroad company, the measure of duty of the plaintiff's driver is the same as in the case of any railroad in the streets of the city.(4) That the right to run a steam railroad through the street of a city, when lawfully acquired, is the right to an exclusive right to run its cars on its tracks, except at crossings, subject only to the right of the public to use the same when not in use by the railroad company.(5) That if the jury believe that the train of the defendant was not being run at a greater rate of speed than eight miles an hour, and that the bell or gong was being rung at short intervals, then the defendant was not guilty of negligence.(6) That the care required of the driver was that, before attempting to cross the track, he should look to see if the trains were passing; or, if his view was so obstructed by buildings that he could not see the track or an approaching train, then it was his duty to pause and listen, and, if he failed to look or listen, then this would be negligence on his part, which would defeat the plaintiff's right to recover, if by looking or listening the driver could have prevented the injury.(7) The failure of the defendant to comply with the statutes or city ordinances in the operation of its trains did not excuse the driver of the wagon from using his senses of sight and hearing before attempting to cross the defendant's track, and if, by looking and listening, he could have escaped the danger, the injury is conclusive evidence of negligence, without any reference to the defendant's failure to perform its duty in regard to signals, which will defeat the plaintiff's right to recover.(8) That, the driver having testified that he knew the trains of defendant coming towards First avenue from Avenue E ran on the first track, that he would cross at the intersection, then before attempting to cross this track it was the duty of the driver to look in the direction from which such trains would come, or, if the view of the track in this direction was obstructed, then it was his duty to pause and listen for trains, and if he failed to look or listen under these circumstances, then this would be negligence which would defeat a recovery, if by looking or listening the driver could have escaped the injury.(9) If the jury believe from the evidence that the driver knew that the trains of defendant coming into town came on the track which he would cross first, from a southerly direction, and if the jury further believe that the view of the track was obstructed in the direction from which the train was coming, then it was the duty of the driver to pause and listen before attempting to cross the track; and if he failed to pause and listen for the train, and drove on the track, then this would be negligence which would defeat a recovery, unless the defendant, after discovering the team on the track, and in danger, failed to use all means in its power to prevent the injury."There were verdict and judgment for the plaintiff, and defendant appeals.

Alex.T. London, for appellant.

COLEMAN J.

Appellee sued defendant to recover damages for killing his mule and injuring his wagon, alleged to have been done by the wrong and negligence of the employes of defendant corporation while operating its engine and cars over its track in the city of Birmingham.The general principles of law to be applied to the evidence of this case as they successively arise are as follows: (1) If the injury sustained by plaintiff resulted as the natural consequence of any wrong or negligence of the defendant, then plaintiff, upon such proof alone, is entitled to recover.(2) That though defendant may have been guilty of negligence which entitled plaintiff to recover upon this proof alone, if the evidence further showed that plaintiff was guilty of contributory negligence, such contributory negligence would defeat plaintiff's recovery in the absence of...