Johnson v. Louisville & N.R. Co.

• Decision Date: 06 April 1933
• Docket Number: 7 Div. 95.
• Citation: 227 Ala. 103,148 So. 822
• Court: Alabama Supreme Court
• Parties: JOHNSON v. LOUISVILLE & N. R. CO. et al.

148 So. 822

227 Ala. 103

JOHNSON v. LOUISVILLE & N. R. CO. et al.

7 Div. 95.

Supreme Court of Alabama

April 6, 1933

Rehearing Granted May 25, 1933.

Rehearing Denied June 22, 1933.

Appeal from Circuit Court, Shelby County; E. P. Gay, Judge.

Action for damages for personal injuries by Alton C. Johnson against the Louisville & Nashville Railroad Company and another. From a judgment for defendants, plaintiff appeals.

Reversed and remanded on rehearing.

W. A Denson, of Birmingham, for appellant.

W. W Wallace, of Columbiana, and White E. Gibson and M. Leigh Harrison, both of Birmingham, for appellees.

BROWN Justice.

This is an action on the case by the appellant, Alton C. Johnson against the appellees, Louisville & Nashville Railroad Company and its engineer, W. J. Weaver, for personal injuries alleged to have been inflicted on plaintiff as a proximate consequence of the negligence of said Weaver.

The plaintiff withdrew counts 1 and 2 of the complaint, leaving in the complaint counts A and B. Count A, after stating matters of inducement, averring that plaintiff received his injuries in consequence of a collision of plaintiff's automobile and defendant's train, and cataloguing the injuries suffered, avers that: "Said injuries and damages to him were proximately caused by the negligence of the defendant, W. J. Weaver, who was then and there in the employment of defendant, Louisville and Nashville Railroad Company, and was then and there engaged in the active performance of the duties of said employment in and about the operation of said train, which negligence consisted in this, said Weaver after becoming aware of the peril of plaintiff being injured by said train negligently failed to use all of the means at his command to avoid said train injuring plaintiff, when by the use of said means said train would have been prevented from injuring plaintiff." (Italics supplied.)

Count B adopts the averments of count A as to the matters of inducement, and the injuries received by plaintiff, and avers that: "Said injuries were proximately caused by the negligence of the defendant, W. J. Weaver, who was then and there in the employment of the defendant, Louisville and Nashville Railroad Company, and was then and there engaged in the active performance of the duties of said employment in and about the operation of said train, which negligence consisted in this, said Weaver negligently caused the collision of said train and said automobile." (Italics supplied.)

The pleas were the general issue and contributory negligence. The court gave the affirmative charge for the defendants as to count B, and submitted the case to the jury under count A, resulting in a verdict in favor of the defendants.

Some of the special pleas, notably 3 and 7, were defective as pleas of subsequent contributory negligence, in failing to aver that plaintiff, after becoming aware of his peril, negligently caused or allowed his car to go upon the track on which said train was approaching and thereby proximately contributed to his injury. Louisville & N. R. Co. v. Scott, 222 Ala. 323, 132 So. 29. The court therefore erred in overruling the plaintiff's demurrers to said pleas as stating a defense to count A. However, this error was rendered innocuous by special instructions given at plaintiff's instance, which we have numbered for convenient reference as 14, 22, 27, 28, and 29, in which the jury was instructed that negligence on the part of plaintiff to defeat a recovery for subsequent negligence-the negligence charged in count A-must have occurred after plaintiff became aware of his peril. Southern R. Co. v. Dickson, 211 Ala. 481, 100 So. 665.

The appellant's next contention is that the court erred in giving the affirmative charge, requested in writing by the defendant, as to count B.

The evidence is without dispute that the plaintiff was injured as the result of a collision between his automobile and defendant's passenger train, at Parkwood crossing. The plaintiff at the time was driving a Hudson automobile east along the public road which intersects and crosses the defendant's tracks, consisting of a double-track main line and two side tracks, one of the side tracks located east of the main line and the other on the west; the space in which the four tracks were laid, from the ditch on the east to the ditch on the west, being approximately 50 feet, with an embankment rising immediately from the ditch on the east side of the right of way and extending south. The evidence as to the height of this embankment is in dispute; the evidence of the plaintiff tending to show that this embankment was, at the time of the injury, approximately 10 feet in height, while the evidence offered by the defendant tends to show that the embankment was from three to six feet in height. The railroad at this point runs through a wooded section, the timbers extending up to the top of the embankment.

The time of the collision was about 2 o'clock in the afternoon of December 23, 1926. The train consisted of a locomotive, in charge of the defendant Weaver, and three passenger coaches, running as second No. 2, going from Montgomery to Birmingham, late of schedule time, and was proceeding north at from 45 to 50 miles per hour.

The plaintiff testified: "At the time of the collision I was going west. I was going toward Bessemer. I stopped, looked and listened for the train before I went on that crossing. There were four tracks at that time at the place I was hurt. I stopped about fifteen or twenty feet of the side track. I looked in both directions, I did not see any train. I did not hear any train, my hearing was good at that time. After I stopped, looked and listened and did not see any train and did not hear any train I started on in that direction onto the track. I crossed the first track, I crossed the space between the two tracks. I got up on the main line just before I saw the train. I had not heard any train before that time. * * * I did not know anything else after that." And on cross-examination:

"This car I was driving at the time of the accident was a Hudson Speedster, a five passenger car. The curtains were up, and the windshield was so I could see.

"Q. They were in that condition when you went against the train? Ans. Yes, sir. I was driving the car. I was going about fifteen or twenty miles an hour I guess at a point two hundred feet east of the accident. Making about fifteen or twenty miles, I did not notice the speedometer. I was not going over to Bessemer to an entertainment, I was going after my money and coming back to an entertainment. Perkins was in the car the last thing I remember. * * * I do not remember Perkins leaving me. I do not remember him leaving the car at all. I told him just as I saw the train, I said jump, said something like that, I don't remember just what it was now. * * * The road I came on curved around from the south toward the west instead of coming from the north. That is a chert road. My hearing was good at the time I was driving along there before this accident. I said something to Perkins about jumping. At the time I spoke to Perkins we were right here, I got to that track, the front wheel was going right along here (indicating) when I noticed the train * * * coming and told him to jump. The train was about fifteen or twenty feet south of the crossing at the time I told him to jump. At that time my front wheels were on the main line, I told Perkins to jump, I don't know whether I kept looking at the train or not. At that time I was right here. At that time my eye sight was good. I did not wear glasses at that time, my hearing was good at that time; my hearing is good now. * * * I stopped even with the sign board, stopped fifteen or twenty feet east of the side track.

"Q. Was there anything to keep you from running to here (indicating), before you got on the side track and stopped? Ans. Yes, sir, that space along there is practically level back to the mail boxes for fifteen or twenty feet.

"Q. You did not drive down to there (indicating)? Ans. No, sir, I drove in fifteen or twenty feet of the side track, there was a big sign board on this side (indicating). I stopped right at the end of that. I came down this road, this road is higher than the railroad here.

"Q. Now, this is a point fifteen feet east of that track, how many hundred feet could you see down this way (indicating)? Ans. I could not see. I could not see down the track at all. You could not see this way (indicating), unless you looked right down the road. I had been over that crossing several times. I had not been over that road many times before that, only three or four different times before that time. I don't know how far I could see down the main line at the time I stopped for the crossing.

"Q. What is your best judgment of the distance? Ans. I don't know, about thirty feet from the main line, that is my best judgment. I know where I stopped.

"Q. You say that was right about here (indicating)? Ans. Fifteen or twenty feet east of the east rail of the side track, and it might be the other track. It might be fifteen or twenty feet from the west side. I am just estimating that, it may have been fifteen or twenty feet from the east rail of the main track, I did not pay much attention, I am just guessing, that it was fifteen or twenty feet east of the east side track. I never noticed any mail boxes there. I did not shut off my engine. I stopped dead still, as quickly as I looked down and up and straight and saw no train I started on.

"Q. How far could you see toward the train? Ans. About fifteen or twenty feet you could see and when we moved up a little you could see fifty or seventy-five feet.

"Q. When you got on the side track, when you came on and got

...