Johnson v. Louisville & N.R. Co.

• Decision Date: 10 October 1940
• Docket Number: 7 Div. 304.
• Citation: 240 Ala. 219,198 So. 350
• Parties: JOHNSON v. LOUISVILLE & N. R. CO. ET AL.
• Court: Alabama Supreme Court

198 So. 350

240 Ala. 219

JOHNSON v. LOUISVILLE & N. R. CO. ET AL.

7 Div. 304.

Supreme Court of Alabama

October 10, 1940

Rehearing Denied Nov. 14, 1940.

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 W. J. Weaver. From a judgment for defendants, plaintiff appeals.

Affirmed.

Where there was evidence which if believed justified the verdict motion for new trial was properly overruled.

It is alleged in Count A that plaintiff, while riding in an automobile on a public highway in Jefferson County, Alabama at a place where he had a right to be, and was not a trespasser, was injured when a train and said automobile came into collision at a public road crossing, known as Parkwood crossing, seriously injuring plaintiff as therein set forth. It is averred that plaintiff's injuries and damages "were proximately caused by the negligence of the defendant, W. J. Weaver, who was then and there in the employment of the defendant, Louisville & 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."

Count B, substantially the same as Count A in other respects, avers that the negligence of Weaver consisted in this: "Said Weaver negligently caused the collision of said train and said automobile."

One of the defendants' pleas, charging contributory negligence to the plaintiff, alleges that on the occasion in question "plaintiff was engaged in driving said automobile toward said railroad crossing at said time and place, and, while approaching said railroad track, at said crossing, plaintiff saw said approaching train upon said track at a rapid rate of speed, and, after seeing said train and knowing that it was approaching said crossing, and with knowledge of the fact that he would probably or likely collide with said train if he continued to drive said automobile toward said track plaintiff, notwithstanding such knowledge, negligently continued to drive said automobile toward said track, conscious of his peril in so doing, and collided with said train at said time and place, though by the exercise of reasonable care he could have safely stopped said automobile at a place of safety after becoming aware that he would probably or likely collide with said train if he continued to drive said automobile toward said railroad crossing."

Another of the pleas alleges negligence on the part of plaintiff as follows: "On said occasion, plaintiff was engaged in driving said automobile toward said railroad crossing, at said time and place; that at said time defendant's train was approaching said railroad crossing on said track; that after defendant W. J. Weaver became aware of plaintiff's peril of being injured by said train, plaintiff became aware of the approach of said train on said track and, with knowledge of the fact that he would probably or likely collide with said train if he continued to drive said automobile toward said track, he negligently continued to drive said automobile toward said track, with knowledge of his peril in so doing, and collided with said train, although by the exercise of reasonable care, he could have safely stopped said automobile in a place of safety after he became aware of the approach of said train and his peril therefrom."

The following charges were given at the request of defendants:

"10. The court charges the jury, that if you are reasonably satisfied from the evidence in this case that, on the occasion complained of, the plaintiff was in such a place of safety near the tracks on which said train was rapidly approaching so that he could have safely stopped said automobile in a place of safety, by the exercise of reasonable care, and if you are further reasonably satisfied from the evidence that the plaintiff then and there saw said train approaching upon said tracks at a rapid rate of speed, and then and there knew that he would probably or likely collide with said train if he continued to drive said automobile toward said tracks, and that the plaintiff, with such knowledge, continued to drive said automobile toward said track, conscious of his danger in so doing, and collided with said train at said place, then I charge you that you cannot render a verdict for the plaintiff in this case."

"11. The court charges the jury that if you are reasonably satisfied from the evidence in this case that defendant W. J. Weaver saw the automobile which plaintiff was driving when said automobile was at such a distance from said crossing and was being operated at such a rate of speed that said automobile could have been safely stopped by the exercise of reasonable care on the part of the driver thereof, before coming within dangerous nearness of the track on which said train was travelling, then I charge you that it did not become the duty of defendant Weaver to promptly use all the means known to prudent and skillful engineers at his command to avoid the accident until and unless defendant Weaver became aware that the plaintiff was unaware of the train's approach, and that plaintiff would probably enter the zone of danger from the approaching train, and, if at the time defendant Weaver so became aware, it was then too late to avoid the accident by stopping or checking the speed of the train or giving notice to the plaintiff of its approach, you cannot find a verdict for the plaintiff and against defendant Louisville & Nashville Railroad Company under Count A of the complaint even though you should be reasonably satisfied from the evidence that defendant W. J. Weaver, after discovering the plaintiff's peril, failed to stop or check the speed of the train, or to give the plaintiff notice of its approach."

"12. The court charges the jury that, if you are reasonably satisfied from the evidence in this case that, on the occasion complained of, while plaintiff was at a point sufficiently distant from the tracks on which said train was approaching so that he could have safely stopped said automobile at a place of safety by the exercise of such care as a reasonable man would have used under such circumstances, and if you are further reasonably satisfied from the evidence that plaintiff then and there became aware of the train's rapid approach, and its dangerous nearness to said crossing, and then and there knew of the danger of attempting to cross the tracks on which said train was approaching, and that plaintiff thereafter, conscious of his danger in so doing, attempted to cross said tracks at said crossing after the locomotive of said train had passed over said crossing, and collided with the side of said train then I charge you that you cannot find a verdict for the plaintiff in this case."

"16. The court charges the jury that, if you are reasonably satisfied from the evidence in this case that, while plaintiff was in a place of safety approaching the track on which said train was approaching, he could have safely stopped said automobile in a place of safety by the exercise of such care as a reasonable man would have used under the same or similar circumstances, and, if you are further reasonably satisfied from the evidence that plaintiff was then and there aware that said train was rapidly approaching said crossing and was in dangerous nearness thereto, and if you are further reasonably satisfied from the evidence that plaintiff then and there had such knowledge of the train's approach and was conscious of the danger of attempting to cross said track at said time, but nevertheless thereafter attempted to cross the said track immediately in front of said train, with knowledge of his danger in so doing, then you cannot find a verdict for the plaintiff."

"17. The court charges the jury that, if you are reasonably satisfied from the evidence in this case that, on the occasion complained of, plaintiff stopped said automobile at a place to-wit, fifteen feet from the railroad tracks on which said train was approaching at said crossing and then and there saw said train approaching said crossing and knew that said train and said automobile would probably collide if he attempted to drive said automobile across said track, on which said train was approaching, at said time, and, if you are further reasonably satisfied from the evidence that plaintiff, with such knowledge of the danger of attempting to cross said track, nevertheless attempted to drive said automobile across said track, and came into contact with said train, then you cannot find a verdict for plaintiff.

"18. The Court charges the jury that, if you are reasonably satisfied from the evidence in this case, that on the occasion complained of, while plaintiff was at a point sufficiently

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