Louisville & N.R. Co. v. Johns

• Decision Date: 26 February 1953
• Docket Number: 3 Div. 641
• Parties: LOUISVILLE & N. R. CO. v. JOHNS.
• Court: Alabama Supreme Court

Page 574

63 So.2d 574

258 Ala. 440

LOUISVILLE & N. R. CO. v. JOHNS.

3 Div. 641.

Supreme Court of Alabama.

Feb. 26, 1953.

Steiner, Crum & Baker, Montgomery and B. E. Jones, Evergreen and R. L. Jones, Monroeville, for appellant.

Jones & Key, Evergreen, for appellee.

STAKELY, Justice.

This suit was instituted under the homicide act by Edgar L. Johns as administrator of the estate of J. A. Johns, deceased, against the Louisville & Nashville Railroad Company for damages for the death of J. A. Johns deceased. The case was submitted to the jury on four counts, count four charging simple negligence and counts 6, 7 and 8 charging wilful or wanton injury. The jury returned a verdict in favor of the plaintiff. Hence this appeal.

The main line of the Louisville & Nashville Railroad Company (appellant) between Montgomery and Mobile runs through the center of the City of Evergreen, its general direction being north and south. In the City of Evergreen there is a street on each side of the railroad. However, there are no buildings or other permanent obstructions between the railroad and these streets. On the west adjoining the railroad is West Front Street. The stores on this street are on the west side of the street. On the east adjoining the railroad is East Front Street and stores on this street are on the east side of the street. Both of these streets are open up to the edge of the railroad.

The railroad has four tracks through the center of the City of Evergreen, which divide West Front Street from East Front Street. The track on the western margin of the railroad is a side track, which is used merely for switching purposes. The second track on the west is known as the passing track and is used for passing when trains meet in Evergreen. The third track from the west is the main line of the Louisville & Nashville Railroad on which all through trains run, unless such trains meet, in which event one train uses the passing track. The east track of the Louisville & Nashville Railroad Company running through Evergreen is generally referred to as the team track. This last named track runs beside the Louisville & Nashville Station and also runs along the margin of East Front Street. There is a driveway adjoining this track for quite a distance north of the station and on this track car loads of freight are loaded and unloaded. When full car loads of freight are consigned to Evergreen such cars are set out on the team track to be unloaded and when empty cars are placed to be loaded in Evergreen, they are loaded on this track, called the team track. Cars were originally loaded and unloaded with teams. Hence the term 'team track'. Although trucks are now used by shippers the track is still referred to as the team track. The Louisville & Nashville Station in Evergreen is at the south end of town and is between the team track and East Front Street. Just at the north end of the station is a crossing from West Front Street to East Front Street. This crossing is not in line with any street but simply joins East Front Street and West Front Street. It has no name as a street but is usually referred to as the Depot Crossing. Four Hundred Twenty-three (423) feet north of the depot crossing, Rural Street crosses the Louisville & Nashville Railroad. This crossing is known as the Rural Street Crossing. The depot crossing, which has been referred to, and Rural Street Crossing are the only two public crossings of the Louisville & Nashville Railroad in the central part of the City of Evergreen.

Immediately east of the eastern railroad track, which is described as the team track, and between the two aforesaid crossings, the pavement extends up to the end of the cross-ties, making a paved walk or driveway north and south immediately joining and to the east of the team track.

There was introduced in evidence an engineer's drawing of the lines of the Louisville & Nashville Railroad as they pass through the City of Evergreen. There was also introduced in evidence a picture which shows the tracks and crossings to which reference has been made. These exhibits show very clearly the tracks and crossings which have been referred to.

On June 12, 1950 the local freight train of the Louisville & Nashville Railroad Company which was running south reached Evergreen shortly before noon. The crew of this train consisted of C. D. Lammon, engineer; Arthur Watson, fireman; T. R. Dunn, conductor; J. A. Bethea, brakeman, and Sam Hicks, flagman.

This local freight train came in on the passing track, which is the second track from the west, and traveled on south until the caboose was south of the depot crossing. The conductor Dunn went into the station and ascertained that the train was to pick up a car load of pulp wood and that he had certain cars to set out at Evergreen. After determining what switching had to be done, he gave the necessary instructions and went back to the caboose of the train to do certain paper work. Accordingly he did not see the accident, the basis of this litigation. The engine upon which was the engineer Lammon and the fireman Watson switched over to the team track. The flagman Hicks went immediately to Rural Street Crossing so as to protect persons crossing on this street while the switching was being done. The brakeman Bethea was coupling and uncoupling cars and protecting the Depot Crossing.

The engine, which it will be recalled was headed south, with four cars attached thereto, backed up the team track to a point north of the Rural Street Crossing to get the load of pulp wood, which was to be taken south on the train. The engine and the four cars and in addition thereto the pulp wood car then pulled south down the team track until the pulp wood car was south of the cross-over switch, which is just north of the Depot Crossing. The brakeman Bethea then threw the switch and the engine backed up a slight distance. Bethea uncoupled the car of pulp wood, which ran on the cross-over switch over on to the main line and stopped just south of the Rural Street Crossing. The flagman Hicks, who was protecting the Rural Street Crossing, then came to this car of pulp wood and put chocks under the wheel so that it would not move and then went back to his station at the Rural Street Crossing. The engine with four cars attached thereto then moved back on the team track and went far enough south so that the cross-over switch was cleared. The next movement of the train, which was contemplated, was to set out the north three cars which were attached to the engine on the team track north of the Rural Street Crossing, where they could be loaded.

When the engine and four cars had moved south on the team track so that the cross-over switch was cleared, the brakeman Bethea went to the switch and threw the switch, so that as the train backed up the cars would remain on the team track. He then crossed over to the west side of the team track and gave the engineer a signal and the engine backed up at a speed which various witnesses estimated at from 3 to 15 miles per hour. As the cars rolled by him the brakeman Bethea uncoupled three cars from the train by reaching in and pulling the pin. These three cars rolled back north on the team track to a point just north of the Rural Street Crossing, where they were to be left for loading. The brakeman Bethea testified that when he came across from the switch and gave the signal for the train to back up, the team track was clear to the north of him. After he uncoupled these three cars, the brakeman walked to the Depot Crossing to protect it and all the time Sam Hicks was on the Rural Street Crossing to protect that crossing. According to the witness Bethea, the cars were moving 4 to 5 miles per hour, and he could not have reached in and uncoupled the cars if they had been running 10 to 15 miles per hour.

The undisputed evidence shows that J. A. Johns, plaintiff's intestate, came from the west side of the railroad between the two public crossings, that is the Depot Crossing and the Rural Street Crossing, and at the time was walking in an easterly direction across the several railroad tracks at a place where there was no regular crossing, though a number of persons customarily cross the railroad between these two crossings. He walked toward the east until he reached the center of the team track. He reached the team track just about the time the engine was backing up and the three cars were cut loose from the engine by the brakeman Bethea. There was nothing to prevent the deceased from seeing this train and cars. He walked east however without stopping, until he reached the center of the team track without stopping, looking or listening, and then turned north in the center of the team track and started walking in the center of the team track north toward the Rural Street Crossing. The flagman Hicks was standing on the Rural Street Crossing. He saw the deceased walking easterly across the tracks and that he had plenty of time to cross the team track and reach the pavement on the east side thereof. When the deceased failed to continue across the team track but turned north thereon, the flagman Hicks immediately started running toward him yelling and waving his hands, but was unable to attract his attention until just before the cars hit him. The three cars which had been cut loose from the engine and were rolling north along the team track struck the deceased in the back, causing his death. The flagman Hicks had practically reached the deceased at a point some 125 to 150 feet south of the Rural Street Crossing when he was struck. The flagman Hicks then turned and outran the cars to the Rural Street Crossing, where he had been stationed during all the switching operations, so as to protect this crossing.

I. We agree with the contention of appellant that there was a fatal variance between the allegations of the several counts on which the case was submitted and the proof offered in support thereof. It is the...