Hurt v. Southern Ry. Co., 7 Div. 38

• Court: Supreme Court of Alabama
• Citation: 205 Ala. 179,87 So. 533
• Docket Number: 7 Div. 38
• Parties: HURT v. SOUTHERN RY. CO.
• Decision Date: 13 January 1921

87 So. 533

205 Ala. 179

HURT v. SOUTHERN RY. CO.

7 Div. 38

Supreme Court of Alabama

January 13, 1921

Appeal from Circuit Court, Talladega County; A.B. Foster, Judge.

Action by W.P. Hurt against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Brown J., dissenting.

Pleadings are to be construed by taking the allegations thereof as a whole, and not in the light of a detached sentence or paragraph standing alone.

The following pleas are directed to be set out:

(2) Said plaintiff was guilty of contributory negligence which proximately contributed to his injury, in this, that said plaintiff before driving upon or attempting to cross said railroad track of defendant company failed to stop look, and listen for any trains which might be approaching said crossing, and, if said plaintiff had so stopped, looked and listened before attempting to cross said crossing, that he would not have been injured.

(3) Defendant avers that the plaintiff was driving said truck which was struck along a highway near the defendant company's railroad; that said road ran not far distant from said track until near where said dirt road crossed defendant's track; that at the time a local train was approaching some distance down the track; that before the said plaintiff drove on said track if he had stopped said truck and listened or looked he could have seen or heard the approaching train, but that said plaintiff negligently failed to stop, look, and listen, but drove upon said track without so stopping, looking, and listening; that his said car or truck stalled or stopped upon said track and was struck by the said engine; and that said injury occurred, which would not have occurred if said plaintiff had so stopped, looked, and listened.

(4) Defendant avers that said plaintiff was driving said truck near the railroad crossing of the Southern Railroad when its said freight train was approaching some 20 or 25 rail lengths from the east, said train being a freight train consisting of, to wit, 38 cars, and running at, to wit, 25 miles an hour; that plaintiff, knowing of the approaching train, attempted to cross said railroad track with said truck ahead of said train, and that he went upon said track with his said truck, and his said engine which was running said truck stopped or stalled, and the approaching train ran against said truck before the said train could be stopped. Defendant avers that the plaintiff was negligent in going upon said track knowing of the approach of said train, and on account of said negligence proximately contributed to his injuries complained of.

(5) Defendant avers that said plaintiff was driving said truck near the railroad crossing of the Southern Railroad when its said freight train was approaching some 20 or 25 rail lengths from the east, said train being a freight train consisting of, to wit, 38 cars, and running at, to wit, 25 miles an hour; that plaintiff, knowing of the approaching train, or could have ascertained of its approach by reasonable diligence, attempted to cross said railroad track with said truck ahead of said train, and that he went upon said track with his said truck, and his said engine which was running said truck stopped or stalled, and the approaching train ran against said truck before the said train could be stopped. Defendant avers that the plaintiff was negligent in going upon said track knowing of the approach of said train, or having been able to ascertain of the approach of the same by reasonable diligence, and that such negligence proximately contributed to his injuries complained of.

(6) The plaintiff was guilty of contributory negligence which proximately contributed to his injury, in this, that said plaintiff was operating a truck, delivering Chero Cola, and attempted to drive upon or across the railroad track of said defendant railroad company near Embry's crossing, in Talladega county, Ala.; that there was a west-bound freight train, to wit, 38 cars, approaching said crossing some distance from the east, in driving across said crossing the said plaintiff negligently attempted to change his said gear and negligently operated said truck so that he stopped or caused his said engine to stop on said railroad track, and that it would not have stopped thereon but for said negligence of the plaintiff in operating his said truck, and that said negligence in stopping said car upon said track proximately contributed to the injury complained of, and plaintiff cannot recover in this action.

The following is charge 8 given for the defendant:

Court charges the jury that, if you believe from the evidence that said train at the time said Hurt went upon said track and his engine stopped, that said locomotive and train was so near to said crossing that it could not have been stopped before reaching said crossing, then the defendant could not be guilty of wanton, willful, or malicious negligence, and that if you further believe from the evidence that said Hurt could have seen said approaching engine before going on said track, by stopping, looking, and listening, and he failed to do so, and if he had done so he would have seen said approaching train and known that it would have been dangerous to attempt said crossing, then the court charges you the plaintiff cannot recover in this action.

The following is charge 1, refused to the plaintiff:

If the engineer discovered the truck stopped or stalled on the track in front of and in danger of being struck by the engine, and if the engineer after he discovered such peril of the truck failed to do anything which he could have done to have averted the injury, and if such failure of the engineer caused the injury to the truck, the plaintiff will be entitled to recover, notwithstanding Hurt did not stop, look, and listen before going on the track.

Riddle & Riddle, of Talladega, for appellant.

Knox, Acker, Dixon & Sims, of Talladega, for appellee.

SAYRE J.

This is an action for damages brought by appellant against appellee; the allegation of the complaint, so far as it need be stated, being that defendant negligently ran its locomotive engine over and against plaintiff's automobile truck destroying the same. The court overruled demurrers to several special pleas of contributory negligence and these rulings are assigned for error. The reporter will set out the pleas.

Plea 2 alleges that plaintiff failed to stop, look, and listen before driving upon the track. The point taken against the plea is that it fails to allege that plaintiff negligently drove upon the track. The facts alleged imported negligence per se (L. & N. v. Crawford, 89 Ala. 240, 8 So. 243), and in such case it is not necessary to go further and expressly characterize plaintiff's conduct as negligent ( B.R., L. & P. Co. v. Gonzales, 183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543). As for the point taken against the plea, it was good. But, of course, it did not impair the sufficiency of plea 3, on similar authority, to allege that plaintiff did negligently drive upon the track without, etc. Plea 3 was therefore good also.

The ruling in favor of plea 4 was free from error. This plea states the facts and alleges that plaintiff was negligent in going upon the track; that is, negligently went upon the track, knowing the approach of defendant's train, and thereby proximately contributed,...