Louisville & N. R. Co. v. Martin, 7 Div. 602.

CourtSupreme Court of Alabama
Citation198 So. 141,240 Ala. 124
Decision Date06 June 1940
Docket Number7 Div. 602.

Rehearing Denied Oct. 10, 1940.

Appeal from Circuit Court, Shelby County; Arthur Glover, Judge.

Action for wrongful death by J. R. Martin, as administrator of the estate of Martha L. Martin, deceased, against the Louisville & Nashville Railroad Company, George W. Leonard, and Herbert S. Virgin. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Steiner Crum & Weil, of Montgomery, Gibson & Gibson, of Birmingham and Paul O. Luck, of Columbiana, for appellants.

L. H Ellis, of Columbiana, and D. G. Ewing and Clark & Trawick, all of Birmingham, for appellee.

GARDNER Chief Justice.

At three o'clock in the afternoon of a clear June day Martha L. Martin was struck and killed by the engine of a freight train of the defendant railroad corporation, operated at the time by defendant Leonard, as engineer and defendant Virgin as the fireman; the accident occurring at a public road crossing in the town of Thorsby, Alabama, known as "North Crossing."

The suit is by the administrator of the estate of said Martha L. Martin, to recover for her death under our homicide statute (Section 5696 Code, 1923), and from a judgment for plaintiff in the sum of $5,000 against the three defendants this appeal is prosecuted.

From the conclusion here reached we think the discussion here may be brought within a narrow compass.

The freight train, loaded and containing some forty cars, was traveling at a speed estimated from twenty-five to forty-five miles per hour. Plaintiff's intestate was walking along the old Birmingham and Montgomery highway, going in the same direction as the train and with her back to it until she turned toward the crossing. Her vision and hearing were normal and nothing to obstruct her view. She apparently heedlessly walked into the left front side of the engine, was not run over, but thrown into the air and thus met her death. She neither stopped, looked nor listened, and her conduct is inexplicable.

Upon the plainest principles of the law relating to contributory negligence no recovery could be had upon any theory of initial simple negligence, and the trial court so instructed the jury. Southern Ry. Co. v. Miller, 226 Ala. 366, 147 So. 149.

Plaintiff's case, in the last analysis, was rested upon the doctrine of subsequent negligence, based upon the theory that both the engineer and the fireman negligently failed to use all means known to skillful men in their positions to avert injury to plaintiff's intestate after a discovery of her peril. Thompson v. Mobile & O. R. Co., 211 Ala. 646, 101 So. 441.

The evidence of the fireman could properly be interpreted to the effect that as he saw plaintiff's intestate when she was within 12 or 15 feet approaching the crossing and the train some 150 feet therefrom, he became aware of her peril, that is, that she was walking onto the crossing without any apparent notice of the oncoming train, that he thereupon called to the engineer to blow again the whistle. Both the fireman and engineer insist this was promptly done and that the bell was ringing. But there was proof no whistle was blown and that the bell was not ringing.

The engineer insists though he was looking ahead and no obstruction for 200 feet he did not see plaintiff's intestate at any time as she was approaching the crossing; and the fireman's warning informed him that something was close to the track probably, or "something going across"; that he did not attempt to slacken the speed, he says, "because I was over the crossing". The brakes were not applied before the accident nor the train thrown into emergency. Of course, though he testified to the contrary, the jury could reasonably infer the engineer who was looking ahead and with unobstructed view for 200 feet, did likewise see plaintiff's intestate as she walked the highway and as she turned toward the crossing. Louisville & Nashville R. R. Co. v. Davis, 236 Ala. 191, 181 So. 695.

True there was little time to act and the jury was considering performance of duties within a few seconds. Southern Ry. Co. v. Miller, supra. But as observed by this court in Thompson v. Mobile & O. R. Co., 211 Ala. 646, 101 So. 441, there were two things open to the engineer, a warning signal, the most effective at his command, and a slackening of the speed of the train. Plaintiff offered proof that neither of these precautions was observed, and much reliance is had upon the recent case of Pollard et al. v. Crowder, Ala.Sup., 194 So. 161 (here much in point), wherein reference was made to the fact that a sharp blast of the whistle may have served as a sufficient warning and have thus prevented the fatal step, and that the brakes may likewise have been applied. As against the fireman we think it must be conceded a weaker case is presented. He promptly made appeal to the engineer to blow the whistle, and as we have said whether this was done was a disputed issue of fact for the jury. He could not himself blow the whistle, a suggestion in appellee's brief, for it clearly appears that it is not at hand for him but is on the engineer's side.

Whether the bell was rung was also a disputed fact. If it was not, it appears the fireman could have done so. Perhaps this is a slender thread upon which to rest a charge of negligence on the fireman. But we cannot say as a matter of law that it was no negligence to fail to do so or that as a matter of law the failure in this regard was of no consequence. We have omitted details of proof, but have reached the conclusion a jury case was presented as against all defendants and the affirmative charge as to each properly refused.

An important witness for plaintiff was one Couch, a locomotive engineer, who qualified as an expert, testifying as to his familiarity with the construction and operation of engines and trains and their braking system and his experience in stopping trains of various lengths and sizes.

We think it apparent from the record that plaintiff's greatest reliance for recovery rested upon the proof tending to show the negligence of the engineer in failing to promptly give a warning signal by a blast of the whistle and his admitted failure to apply the brakes or put the train in emergency and thus slacken the speed. Upon these issues Couch made a valuable witness for the plaintiff. His testimony tended to show that brakes are applied instantly over the entire train and simultaneously; that the engineer can blow the whistle and put on the emergency in a fraction of a second and all at the same time; that the train could have been delayed from five to seven seconds in reaching the crossing had the emergency brakes been applied.

In short the testimony of Couch gave ground for argument that the engineer on this occasion not only was negligent in failing to blow the whistle, as some of the evidence tended to show, but that by prompt action he could at the same time have so slackened the speed of the train as to avert the accident.

As to all of his testimony upon these issues defendants' expert witnesses are in sharp conflict, and it is clear enough the testimony of Couch was greatly stressed upon the trial before the jury just as it is stressed in brief here.

On cross-examination of the witness Couch defendant elicited an admission that in recent years he had testified for the plaintiff in damage suits. "I didn't count them, as often as I got summons." Upon direct examination the plaintiff elicited from the witness, after declaring that he was an experienced engineer, also further information that he was "a member of the Brotherhood of Engineers of the State of Alabama".

Couch had testified in a former trial of this case and defendant on cross-examination asked him if he did not state on the former trial that he "knew more than two-thirds of all the engineers in the country". Plaintiff's objection was sustained and much discussion of counsel followed. Witness was also asked if in fact he did claim to know more than two-thirds of all the engineers in the country, and plaintiff's objection thereto sustained. We think all of this comes within the legitimate scope of cross-examination. But as we read the record the witness did answer that he did not claim as an expert to know more than two-thirds of the men in the country about engines, but that he did answer, with the trial court's permission "Yes" to the question: "Did you make this answer on a former trial of this case in this court: 'I think I know more about an engine, or engines than the average man, possibly two-thirds more.' "

As we view it, therefore, the questions were answered and these matters need no further consideration.

Defendant further sought to elicit from the witness on his cross-examination that he had been discharged by two railroads, the Seaboard Air Line and the Southern Railroad Companies. Plaintiff interposed objections which were sustained and the questions left unanswered.

As to the Seaboard the question was: "Q. You are the same Mr T. E. Couch who was discharged from the Seaboard Air Line Railroad for viciousness of temper, intemperance and dishonesty?" Counsel for plaintiff argued the objection upon the theory that the only way to impeach a witness is to show he had been convicted of a crime involving moral turpitude, saying: "He may have been discharged from several railroads and it doesn't make a particle of difference affecting the testimony of the witness.". Defendant then sought to elicit from the witness that he had so testified in court in another case and the objection was sustained, and plaintiff's counsel insisted that the court instruct counsel for defendant to ask no more questions of that...

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