Louisville & N.R. Co. v. Williams

• Decision Date: 17 June 1913
• Citation: 183 Ala. 138,62 So. 679
• Parties: LOUISVILLE & N.R. CO. v. WILLIAMS.
• Court: Alabama Supreme Court

62 So. 679

183 Ala. 138

LOUISVILLE & N.R. CO. v. WILLIAMS.

Supreme Court of Alabama

June 17, 1913

Rehearing Denied June 30, 1913

Appeal from Circuit Court, Autauga County; W.W. Pearson, Judge.

Action by Joseph E. Williams against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff was an employé of the Marbury Lumber Company, and about 2 p.m., while attempting to cross a spur track running from defendant's main line about 350 yards into the lumber company's premises, between its sawmill and planing mill and used only in connection with its business, was run down and seriously injured by a cut of freight cars kicked or pushed by defendant's locomotive or engine from its main track. Plaintiff's evidence tended to show that there were four cars in the cut, that they were moving at the point of collision at a speed of from eight to twelve miles an hour, on a downgrade; that plaintiff was carried along about 100 feet after being hit, and was taken from under the second car after it had stopped; that no warning was given of the approach of the cars, and no one was sent ahead to see that the track was clear; that no one was on the cars at the time of the collision; that the brakeman got on one of the cars after the accident and applied the brake; that previous to this occasion the brakeman or flagman, or the conductor Smith, would always come along and see whether the track was clear and flag the cars in, and on the first trip in that morning the brakeman came down in front of the cars; that it was customary to kick the cars onto the spur; that switching on the spur was customarily done once a day, after which the trainmen would not come back; that on this day they came and switched on the spur in the forenoon, after which they took their train to Mountain Creek, a mile or two away on the main line, and came back after an hour or so and shoved in the cars that struck plaintiff.

The evidence shows without material dispute that the spur track curves considerably from the main track to its terminus at the Marbury Lumber plant; that lumber was piled for a great way on both sides of it about 8 feet high and within 1 1/2 to 3 feet of the rails at the point of collision; that plaintiff and a companion employé had left their work in the planing mill to get more lumber to work on, and had emerged from a narrow passageway between the piled up lumber, immediately upon the track, heedlessly and without stopping, looking, or listening, and was struck by the front car as he got on the track, his companion being simultaneously struck and killed that the mills were then in operation and making such a noise that the sound of an approaching train, or its warning signals, could not be heard by one at the passageway; that plaintiff did not hear it and was unaware of its approach and that these general conditions were known to the conductor of the train. Plaintiff's evidence tended to show, also That the spur track ran through the lumber company's premises where about 150 of its employés were engaged at work. That crossing throughout its whole extent, where not obstructed, was frequented by these employés and at all times of the day. That some one was on the track on an average of one every minute. That at the point of collision there was a regular passageway over which plaintiff was passing. That the path was visible, and was the main place of crossing, and that some one was constantly crossing there in connection with the work of the lumber plant--as one witness stated, "every minute in the day." That Smith, the conductor of this train, had been coming in on the spur and switching cars every other day or so for about six weeks. That he had seen numbers of people on the track and had seen them crossing to and fro on the occasion of his visit, and that he was acquainted with conditions about the spur track and lumber plant.

There was a sharp conflict in the evidence as to the number of cars in the cut, as to the speed at which they were moving, as to the distance they ran after the collision, and as to the presence and position on the cars of the conductor and the negro brakeman before and at the time of the collision. A fuller statement as to the condition of the premises and surroundings and the mode and circumstances of the collision will be found in a report of a former appeal in this case in 172 Ala. 560, 55 So. 218. All counts on simple negligence were eliminated by charges of the court, and the case went to the jury only on the ninth count of the complaint, which was for willful or wanton negligence. The verdict was for the plaintiff for $27,000 damages, and judgment was accordingly entered. The damages shown were that plaintiff's left leg was ground off and amputated about halfway between the knee and the ankle, and that the right foot was cut off diagonally from the little toe across the instep to the heel, leaving the little toe on that part of the foot; that plaintiff was in the hospital 5 weeks and was unable to get about or to work for 13 months; that he was earning when injured $1.50 and is now earning only $1 a day; and that he was previously sound in body and of good health.

R.T. Goodwyn, George W. Jones, J.M. Foster, and S.L. Field, all of Montgomery (H.L. Stone, of Louisville, Ky., of counsel), for appellant.

Hill, Hill, Whiting & Stern and William H. & J.R. Thomas, all of Montgomery, and Eugene Ballard and P.E. Alexander, both of Prattville, for appellee.

SOMERVILLE J.

The complaint alleges that defendant's servant in charge of its cars, while acting within his employment, willfully or wantonly ran said cars against or upon plaintiff, thereby proximately causing the injuries described. This sufficiently charges a willful or wanton injury, as uniformly held by this court.

A witness should not be allowed to state that another person does or does not know a particular fact, this being a mere conclusion, and ordinarily the allowance of such testimony, when properly objected to, is reversible error. L. & N.R.R. Co. v. Perkins, 165 Ala. 471, 51 So. 870, 21 Ann.Cas. 1073, citing numerous cases. But where the witness has stated the facts upon which his conclusion is based, the allowance of his inference also does not necessarily require a reversal of the judgment. Evans v. State, 120 Ala. 269, 25 So. 175. Plaintiff's witness Snyder was asked if Conductor Smith had been in on the spur track before the day of the accident, and he answered: "Oh, yes; he knew how many people crossed there." Defendant's motion to exclude this answer on the ground that it was irrelevant and a conclusion of the witness was overruled. The question was proper, and the affirmative answer, "Oh, yes," was not subject to any objection. The additional and gratuitous statement of the witness was obnoxious to the rule above stated, but the objection to the entire answer was properly overruled. Hill v. State, 146 Ala. 51, 41 So. 621.

But, if the witness was in a position to observe, he may be able to state that another person who was present saw stated conditions or occurrences which were visible and open to ordinary observation. This is the statement of a collective fact which the witness may well know with certainty, and which is in accordance with common, everyday experience. International, etc., Co. v. Anchonda, 33 Tex.Civ.App. 24, 75 S.W. 557; C. of G. Ry. Co. v. Hyatt, 151 Ala. 355, 43 So. 867. A cross-examination of the witness might have exposed the inadmissibility of his quasi conclusion, but this was not attempted.

In allowing several of plaintiff's witnesses to state that Conductor Smith saw the location of the mills and track and lumber, and saw people going on and crossing the spur track, the trial court committed no error; though, the facts being admitted, such collective statements may also without error be excluded.

It was proper for plaintiff, under the conditions exhibited, to show that no one came or was sent in advance or at the front of the cars on this occasion; that it was the usual practice to do that when cars were shoved or drawn in on the spur; that it was not customary to kick them in without warning, or without some one stationed at the front end to give warning; that plaintiff had no warning of any sort that the cars were coming as they did; and that the defendant company had prosecuted its business of switching cars on the spur without objecting to the lumber company's employès crossing the track as they were in the habit of doing.

It is to be observed that the situation here is altogether different from the ordinary case of persons crossing a railroad's tracks upon its own right of way. The spur was on the private premises of the lumber company, and was presumptively its property. It was not a highway upon which the defendant ran scheduled trains, or upon which it might switch its rolling stock ad libitum. It was, on the contrary, used merely as a service track for the lumber plant, and for the accommodation of its business. Its employès were in no sense trespassers when they went upon it or across it, but were at least licensees equally with the employès and cars and engines of the railroad company. And, obviously, the latter had no right to presume, and, in the absence of some contract stipulation, no right to demand, that the track should be clear whenever it might be used or suddenly occupied by rolling stock.

These conditions justified the admission of the evidence above enumerated, and the court did not err therein. Nor was it improper to allow plaintiff to show that there was crossing at other points on the spur than the point of collision as illustrative of the general conditions surrounding the use of the track. The restrictions of proof in the...