Louisville & N.R. Co. v. Johnson

• Decision Date: 04 April 1918
• Docket Number: 6 Div. 624
• Citation: 79 So. 43,201 Ala. 611
• Parties: LOUISVILLE & N.R. CO. v. JOHNSON.
• Court: Alabama Supreme Court

79 So. 43

201 Ala. 611

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

6 Div. 624

Supreme Court of Alabama

April 4, 1918

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Action by Laura Johnson, pro ami, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Tillman Bradley & Morrow and T.A. McFarland, all of Birmingham, and Huey & Welch, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

GARDNER J.

The evidence for the plaintiff discloses that at the time of her injury she was walking in a path leading from Tenth avenue in the city of Bessemer straight across the tracks of the defendant railroad, and was on her way home from a visit where she had been sent on business for her mother, on the other side of the switching yards in said city; that she was struck just as she had stepped over the first rail of said track by an ore car which had been standing near the path at the time she started across.

It seems to be strenuously insisted by counsel for appellant that the plaintiff, under the evidence, was a trespasser. But it is quite clear under the decisions of this court that the plaintiff, thus in the act of crossing the track, under the circumstances here disclosed, was not a trespasser. Lloyd v. Central of Georgia Ry. Co., 77 So. 237, and authorities there cited.

The case of L. & N.R.R. Co. v. Porter, 196 Ala. 17, 71 So. 334, and other cases of like character cited by counsel for appellant, involve a longitudinal use of the track by pedestrians, and the distinction between these cases and "populous crossing" cases is briefly referred to in the Porter Case, supra.

The evidence further tends to show that the place where the accident occurred, in the city of Bessemer, is known as Tenth avenue crossing, and that the path which crosses the track at that point leads from said Tenth avenue straight across said track, and that there are quite a number of dwelling houses as well as business industries, on the other side of the switching yards, and that this crossing has been in use by the public very generally for a number of years, as appears from a synopsis of the evidence found in the statement of the case.

It is insisted that, as there was no count of the complaint charging wantonness, the evidence offered in regard to the frequent use of this crossing by the public was inadmissible.

The testimony for the plaintiff tended to show that the car which struck her was propelled by other cars, which were "kicked" loose by the engine and permitted to roll down this track and strike these stationary cars, with no one on them to keep a lookout or give warning. Under these circumstances, therefore, it was proper for the plaintiff to offer proof of a long-continued use of this crossing by the public to show a duty of lookout as to this particular place on the part of those engaged in switching cars. As was said by this court in So. Ry. Co. v. Shipp. 169 Ala. 327, 53 So. 150:

"Such evidence was competent and relevant to show the degree of care required to be exercised by the defendant's agents in moving their trains across such point of its track so used by the public as this was shown to have been used, and as tending to charge them with notice of such use by the public."

See, also, Duncan v. St. L. & S.F.R.R. Co., 152 Ala. 118, 44 So. 418.

The remaining assignments of error relate to the refusal of certain charges, which we think may be sufficiently treated in a general way, and the overruling of the...