Louisville & N.R. Co. v. Rush

Citation208 Ala. 516,94 So. 577
Decision Date26 October 1922
Docket Number6 Div. 718.
CourtSupreme Court of Alabama
PartiesLOUISVILLE & N. R. CO. v. RUSH.

Rehearing Denied Dec. 7, 1922.

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

Action by Harold Rush for damages against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911 p. 449, § 6. Reversed and remanded.

Huey &amp Welch, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

GARDNER J.

A four cylinder Buick automobile belonging to the appellee was practically demolished by one of the passenger trains of the appellant railroad at a road crossing in the village of what is known as Old Jonesboro, situated a short distance out from Bessemer. Suit was instituted to recover damages therefor resulting in a judgment for the plaintiff, from which the defendant has prosecuted this appeal.

The complaint originally contained several counts, all of which however were eliminated, with the exception of count 5 designated as the wanton count. It is there charged: That the plaintiff's automobile was being driven across the track of the railroad at a public road crossing in the village, and at a point where the public-including a large number of people and vehicles-customarily and frequently crossed the track, and where people, automobiles, and other vehicles were likely to be in a position of peril on said track in crossing the same. That the crossing was at the end of a sharp curve in the track, around a high embankment, so as to obstruct the view of the crossing of those in charge of the train until within about 100 feet thereof. That the defendant's agents or servants, knowing the presence of vehicles were likely to be then and there at said crossing in a position of peril, and that injury to persons and property thereon would probably result from the running of the train across said crossing at a high and dangerous rate of speed, did, in reckless disregard of the probable consequences, wantonly run said train at a high and dangerous rate of speed, without any signal of the approach thereof, across said crossing, and the damages resulting were as a consequence of such wanton conduct.

The foregoing is but the substance of the material averments of this complaint, without any effort at any particular description thereof. Numerous questions as to pleading, evidence, and the refusal of written charges are presented in the assignments of error and argued in brief of counsel for appellant; but we pretermit a consideration thereof, in view of the conclusion which we have reached upon the merits of the cause as presented by the proof.

It is strenuously insisted by counsel for appellant that the judgment should be reversed on account of the action of the court in refusing a new trial upon the ground the verdict was contrary to the great preponderance of the evidence. This insistence on the part of counsel for appellant is given but scant, if any, consideration by counsel for appellee in their brief. But we are persuaded, after a most careful study of the evidence as presented by this record, that the motion for new trial should have been granted upon this ground. As said by this court in Southern Rwy. Co. v. Grady, 192 Ala. 515, 68 So. 346:

"We recognize that upon questions of this character much deference is to be accorded the views of the trial judge, and that the powers of this court in this regard should be exercised with the greatest caution. Courts are organized that justice may be evenly administered, and if, after allowing all reasonable presumptions in favor of the correctness of the verdict of the jury, the preponderance of the evidence against the verdict is so decided as to involve the conviction that it is wrong and unjust, then it is the duty of the court to so exercise its power and grant the new trial."

A detailed discussion of the evidence will serve no useful purpose, but, in view of the reversal, we make brief comment thereon. The accident occurred between 3:30 and 4 p. m. on May 6, 1920. The train was about on time, running from Bessemer south toward Tuscaloosa. Plaintiff himself was not in the car, but it was being driven by a young man, Henry Rush, plaintiff's brother, with whom was another boy. The public road runs for quite a distance parallel with the railroad. At the crossing at Jonesboro there is a road leading from the main highway, which crosses the track, out to several houses-going across the branch and going back into the main highway. While it does not appear to be a public road in the sense of having been kept up by the county, yet it has been in use by the people generally for more than 30 years. From the point where this road leads from the main highway to the railroad crossing is something over 100 feet. Henry Rush, the boy driving the car, testified that he imagines he was running about 15 miles per hour when he was driving on the public road parallel with the railway, but that his speed decreased when he turned toward the crossing and that he in fact had gone into low gear (though his car had not stopped) and at the time his car reached the track it was only running five or six miles per hour. The front end of the car seems to have gotten over the first rail of the track, and young Rush and his companion saw the approaching train in time to jump from the car and escape injury. Rush states that he and his companion were talking, and that he looked for the train when he was five or six feet from the track, and that one would have to be five feet from the crossing to see the train 100 feet away, due to the fact there was a cut at its highest point not exceeding ten feet deep and varying down to three feet and then on to a level of the track. As soon as he saw the train he made an effort to stop his car placing it in "neutral" and putting on the brakes. All this happened "pretty quick," to use the language of the witness, and he was of course greatly disturbed and confused. He gives as his opinion that the train was running 40 or 45 miles an hour, and that the bell was not rung or the whistle blown; that when the train stopped the back end of it was about 400 feet from the crossing. While he gives his judgment as to the speed of the train, yet he further testified that he did not take time "to time the speed of the train."

It appears from the proof there are about two houses in the immediate vicinity of this crossing, but in the community there are some 75 or 100 houses; and it may be conceded that the testimony as to the use of this crossing suffices to bring this case within the influence of the populous crossing decisions, although it appears that this was but a village and what is known as a flag station at the time of the accident. No...

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8 cases
  • Southern Ry. Co. v. Miller, 6 Div. 306.
    • United States
    • Supreme Court of Alabama
    • 23 Marzo 1933
    ...... Cooper, 205 Ala. 70, 88 So. 133; Hines v. Champion, 204 Ala. 227, 85 So. 511; Louisville &. Nashville R. R. Co. v. Rush, 208 Ala. 516, 94 So. 577;. 52 Corpus Juris, 353, 354. "The law ......
  • Green v. City of Birmingham
    • United States
    • Supreme Court of Alabama
    • 22 Mayo 1941
    ......Cudd. v. Bentley, 204 Ala. 586, 87 So. 85; Louisville & N. R. Co., v. Rush, 208 Ala. 516, 94 So. 577. . . In. addition to the ......
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    • United States
    • Supreme Court of Alabama
    • 2 Noviembre 1922
  • Alabama By-Products Corporation v. Cosby
    • United States
    • Supreme Court of Alabama
    • 3 Noviembre 1927
    ...... Ala. 338, 70 So. 7; Cudd v. Bentley, 204 Ala. 586,. 87 So. 85; L. & N.R. Co. v. Rush, 208 Ala. 516, 94. So. 577; Twinn Tree Lumber Co. v. Day, 181 Ala. 565,. 61 So. 914. We have ......
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