Hines v. Cooper

• Decision Date: 25 November 1920
• Docket Number: 7 Div. 100
• Citation: 205 Ala. 70,88 So. 133
• Parties: HINES, Director General of Railroads v. COOPER.
• Court: Alabama Supreme Court

88 So. 133

205 Ala. 70

HINES, Director General of Railroads v. COOPER.

7 Div. 100

Supreme Court of Alabama

November 25, 1920

Appeal from Circuit Court, Etowah County; W.J. Martin, Judge.

Action by J.C. Cooper against Walker D. Hines, as Director General operating the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Goodhue & Brindley, of Gadsden, for appellant.

Disque & Disque, of Gadsden, for appellee.

GARDNER J.

It is strenuously insisted by counsel for appellant that the court committed error in refusing the general affirmative charge asked by the defendant, upon the theory of contributory negligence on the part of plaintiff's agent in attempting to cross the track of the railway without observing the rule requiring that he should have stopped, looked, and listened. This we consider the question of prime importance on this appeal.

"The principles of law which control cases of this kind are thoroughly well settled by our decisions. One who is about to cross a railroad track 'must stop so near to the track, and his survey by sight and sound must so immediately precede his effort to cross over it, as to preclude the injection of an element of danger from approaching trains into the situation between the time he stopped, looked, and listened and his attempt to proceed across the track. ***' This language is quoted with approval in L. &amp N.R.R. Co. v. Calvert, 172 Ala. 597, 55 So. 812, where it is further said that the law imposes 'a continuing duty to see that the way is clear before attempting to cross.' Where obstructions interfere with his view of the track, it is all the more his duty to stop, look, and listen at a point where he can best see and hear, and, seeing or hearing, avoid, an onrushing train. L. & N.R.R. Co. v Williams, 172 Ala. 500, 55 So. 208, collecting many authorities." L. & N.R.R. Co. v. Turner, 192 Ala. 392, 68 So. 277.

See also, Bailey v. Sou. Rwy. Co., 196 Ala. 133, 72 So. 67; A.C.L. Ry. Co. v. Jones, 202 Ala. 222, 80 So. 44; Cent. of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 27 So. 1006.

Appellee has sought to avoid the effect of this well-recognized rule by the argument that the evidence was sufficient for a submission to the jury upon the question as to whether or not the nonobservance of the rule was the proximate cause of the injury, and this upon the theory the jury were authorized to infer from the evidence that, had the plaintiff stopped his car, looked and listened, he could not have seen or heard the approach of the onrushing train, and therefore the accident would not have been averted. We do not think this position is well taken. The driver of the car saw the train when it was 150 feet distant, and while his car was upon the track. Considering the undisputed evidence as to the speed of the train and also that of the car as it approached the track, it appears appellant's counsel has demonstrated by mathematical calculation that, had the car been brought to a full stop only a few feet from the track, and sufficient time elapsed to look and listen, the train would have reached the crossing before the car, and the accident avoided.

However, aside from this...