Kansas City, M. & B. R. Co. v. Weeks

• Decision Date: 18 December 1902
• Citation: 34 So. 16,135 Ala. 614
• Court: Alabama Supreme Court
• Parties: KANSAS CITY, M. & B. R. CO. v. WEEKS.

34 So. 16

135 Ala. 614

KANSAS CITY, M. & B. R. CO. v. WEEKS.

Supreme Court of Alabama

December 18, 1902

On Rehearing.

Appeal from Circuit Court, Marion County; Ed. B. Almon, Judge.

Action by Martha Ann Weeks against the Kansas City, Memphis &amp Birmingham Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

This was an action to recover damages for personal injuries received at a public road crossing. The issues submitted to the jury were those of negligence on the part of the defendant's employés in charge of the train, and contributory negligence of plaintiff. The evidence for plaintiff showed that the accident occurred about 3 o'clock in the afternoon on a cold day; that plaintiff was riding in a wagon drawn by two horses; that she and her husband were in front, and another person just behind them and that plaintiff was familiar with the crossing and its surroundings. Plaintiff and the two who were with her in the wagon testified that they stopped the wagon and listened for approaching trains at a point about 50 yards from the track--at a point where trees and bushes obstructed the view of the track; that, hearing no train, they drove on, and stopped again at the edge of the right of way, about 50 feet from the track, at a place where the view of the track was obstructed; that they listened there, and heard no train that they did not stop again, and did not see the train until the horses were on the track; that after passing the edge of the right of way for a distance of 20 or 25 feet, and for a space 25 or 30 feet in width next to the track, there were no bushes, and the view along the track was unobstructed. The plaintiff testified that she always heard the train at Winfield, a few miles from the crossing, whenever she paid any attention to it, and that she knew a train was about due. Two of plaintiff's sons and a nephew and another witness testified to hearing the noise of the approaching train for a considerable distance--several miles--before it reached the crossing, and to hearing it leave Winfield, about two miles from the crossing. These witnesses were further from the crossing and from the train than plaintiff and those with her. A few days after the accident, plaintiff and those with her in the wagon signed a statement, and swore to it before a magistrate, stating that they did not stop to look and listen before going on the track. Other phases of the evidence are shown by the opinion. The jury rendered a verdict in favor of the plaintiff for the sum of $1,000. Defendant made a motion for a new trial, upon the ground, among others, that the verdict was contrary to the weight of the evidence, which motion was overruled.

Walker Tillman, Campbell & Walker, for appellant.

Daniel Collier, for appellee.

McCLELLAN C.J.

The question propounded to Mrs. Weeks as a witness in her own behalf, "Where was the first point at which the train could be seen on account of the bushes there at the point?" was not objectionable. The office of the proposed testimony was to show how nearly the bushes about which she had testified extended along the road which she was traveling up to the track of the railway. She had already testified that an approaching train could not be seen through these bushes. Of necessary consequence, a person approaching the railway would have to clear them before he could see along the track. The question was intended merely to fix this point of clearance with reference to the track--its distance from the track--and it called for no mere conclusion of the witness. It is the same character of question as that--"whether there was curve enough to prevent seeing along the track through there"--held to have been properly allowed in Birmingham Mineral Railroad Co. v. Harris, 98 Ala. 326, 336, 13 So. 377.

Some questions were reserved on the trial involving rulings of the trial court on proposed testimony and requests for charges bearing solely upon counts of the complaint upon which the court subsequently gave affirmative charges for the defendant. It is obvious that these rulings could not have prejudiced the defendant, the appellant here, and we will not further discuss them.

Stephens an agent of the defendant, wrote out, and had the plaintiff and the persons who were with her at the time of the injury complained of was received sign, certain statements as to the facts of...