Johnston v. Southern Ry. Co., 6 Div. 184.

• Decision Date: 31 March 1938
• Docket Number: 6 Div. 184.
• Citation: 236 Ala. 184,181 So. 253
• Parties: JOHNSTON v. SOUTHERN RY. CO. ET AL.
• Court: Alabama Supreme Court

181 So. 253

236 Ala. 184

JOHNSTON v. SOUTHERN RY. CO. ET AL.

6 Div. 184.

Supreme Court of Alabama

March 31, 1938

Rehearing Denied May 26, 1938.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action under Homicide Act by Mrs. T. A. Johnston, as administratrix of the estate of Draper Johnston, deceased, against the Southern Railway Company and Alabama Great Southern Railway Company. From a judgment for defendants, plaintiff appeals.

Affirmed.

Harsh Harsh & Hare, of Birmingham, for appellant.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellees.

BOULDIN Justice.

Action under the Homicide Act, Code 1923, § 5696.

The death of plaintiff's intestate resulted from a collision of an automobile with a freight car at a public street crossing. The trial court gave the affirmative charge, with hypothesis, for defendants. This ruling is the primary question for review.

Without dispute plaintiff's intestate drove his automobile into the freight car, a part of a passing freight train, while the train was standing or slowly moving over the crossing in regular course.

In St. Louis-San Francisco Ry. Co. v. Guthrie, 216 Ala 613, 114 So. 215, 56 A.L. R. 1110, and Southern Railway Co. v. Lambert, 230 Ala. 162, 160 So. 262, this court considered the question of initial negligence of the railway company in an action by a passenger in the automobile coming in collision with a railway car standing upon a crossing; cases in which contributory negligence of the driver of the automobile were not involved. In the instant case, without conflict in the evidence, the unfortunate victim drove his automobile, at a speed variously estimated by plaintiff's witnesses at 30 to 45 miles per hour, head-on into the freight car, in the nighttime, without stopping, looking, and listening.

There is some evidence of low visibility because of fog; some evidence of a slight change of grade in the street as the automobile approached the crossing, affecting in some measure the zone in which the headlight of the automobile would be effective; some evidence of blending colors of pavement and freight car. These matters are greatly stressed as affecting the duty of a railway company at such crossing. As to this question we see no occasion to indulge further discussion than appears in the Guthrie and Lambert Cases, supra, and the long line of cases therein cited.

On the question of contributory negligence, it appears, without dispute, that the decedent was quite familiar with this crossing. The conditions relied upon as rendering it more hazardous to motorists only emphasize the importance of observing the duty to stop, look, and listen, and to have the automobile under control.

This legal duty grows out of the well-known fact that a train cannot be stopped, or removed, if already on a crossing, with the same dispatch as a motorcar equipped as the law requires. It is a duty to see that the crossing is clear of danger from approaching trains, and even a more patent duty when the train is already on the crossing, and its presence is a warning. This court has often, with great emphasis, declared it is negligence as matter of law to disregard this duty. We think it a rule conservative of human life, and therefore to be steadfastly applied. Granting that cases may appear where delusive conditions may render a vigilant compliance with this rule ineffective to avert accident, no such case appears here. We must hold under the undisputed evidence the unfortunate victim of this accident was chargeable with contributory negligence as a proximate cause of his injury, which defeats this action as for initial negligence, if any, on the part of the trainmen. Atlantic Coast Line R. Co. v. Jones, 202 Ala. 222, 80 So. 44; Louisville & N. R. Co. v. Calvert, 172 Ala. 597, 55 So. 812; Central of Georgia Railway Co. v. Barnett, 151 Ala. 407, 410, 44 So. 392; Central of Georgia R. Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Johnson v. Louisville & N. R. Co., 227 Ala. 103, 148 So. 822; Hines v. Cooper, 205 Ala. 70, 88 So. 133; Louisville & N. R. R. Co. v. Turner, 192 Ala. 392, 68 So. 277; Rothrock v. Alabama Great Southern R. Co., 201 Ala. 308, 78 So. 84; Louisville & N. R. R. Co. v. Williams, 172 Ala. 560, 55 So. 218; Fayet v. St. Louis & S. F. R. Co., 203 Ala. 3, 81 So. 671; Pollard v. Rogers, 234 Ala. 92, 173 So. 881.

Turning to the inquiry of negligence after discovery of peril, we find again without conflict that the automobile ran into the thirteenth car (loaded with logs) in a train of 26 cars. No evidence in the record would warrant a reasonable inference that the trainmen, engineer and fireman on the engine, or conductor and flagman in the caboose, or any of them, had knowledge of such collision at the time. Their direct testimony is to the contrary.

It appears this regular freight train passing near 3 o'clock a.m. was required by...