Louisville & N.R. Co. v. Outlaw, 4 Div. 150

• Decision Date: 23 October 1951
• Docket Number: 4 Div. 150
• Citation: Louisville & N.R. Co. v. Outlaw, 60 So.2d 367, 36 Ala.App. 278 (Ala. App. 1951)
• Parties: LOUISVILLE & N. R. CO. v. OUTLAW et al.
• Court: Alabama Court of Appeals

Page 367

60 So.2d 367

36 Ala.App. 278

LOUISVILLE & N. R. CO. v.OUTLAW et al.

4 Div. 150.

Court of Appeals of Alabama.

Oct. 23, 1951.

Rehearing Denied Nov. 20, 1951.

Jas. A. Mulkey, Geneva, and J. C. Fleming, Elba, for appellant.

J. Hubert Farmer, Dothan, and E. C. Boswell, Geneva, for appellee.

HARWOOD, Judge.

In the court below these two suits were by agreement tried jointly, the pleadings and the evidence being the same in each case.Separate verdicts and judgments were rendered in favor of each plaintiff.This appeal is from these judgments.

For convenience we will hereinafter treat the two cases as a single case, they being identical in every respect as to all propositions and issues.

The plaintiff sought damages resulting from injuries sustained when an automobile in which she was riding as a passenger ran into a flat car of a train while the same was across a highway in the town of Cottondale, in the State of Florida.

The case went to the jury on count six of the complaint which was as follows:

Count Six

'The plaintiff claims of the defendant the sum of Two Thousand Nine Hundred Fifty Dollars, as damages, for that whereas, on to-wit: the 1st day of May, 1943, the defendant owned and operated a railroad in Jackson County, Florida, in and through the town of Cottondale, Florida, a municipal corporation in the State of Florida; that defendant owns and operates a railroad, and does business by agent in Geneva County, Alabama; that on said date plaintiff operated trains over its said railroad in Jackson County, Florida, with railroad cars, hauling freight and passengers; that on said date said railroad crossed in, said town of Cottondale, Florida, the Dothan, Alabama, and Panama City, Florida, highway, a public highway, and a greatly travelled public thoroughfare; that about the hour of 11 o'clock P. M. of said date, plaintiff, and who is a resident citizen of the State of Alabama, was riding in an automobile driven by one Lark Weiser along said public highway in said town of Cottondale, Florida, in a northerly direction, and toward said crossing of said railroad and said public highway as aforesaid; that on said date and on said occasion, and while the defendant, by and through its agents, servants or employees, who were acting in the line and scope of their employment, was operating one of its said trains over and along said crossing, the said automobile so being driven by the said Lark Weiser came into a collision with said train or more particularly, a flat car in and on said train, being propelled across said crossing in said town of Cottondale, Florida; that as a result of said collision as aforesaid, plaintiff was seriously and permanently injured; that she received two cuts on her head, with one cut and scar over her left eye; her right knee was painfully wrenched with a permanent injury; her left wrist was sprained; she received cuts on her left leg; she was bruised internally; she was shocked and bruised, made sick and sore; she suffered great physical pain and mental anguish; that it was necessary as a result thereof, to remain in a hospital for a long time, and to receive medical care and treatment during a long period of time.

'Plaintiff alleges that at the time of her said injuries as herein complained of, the following statute laws of the State of Florida were in full force and effect in said State, to-wit:

"768.05 Liability of railroad company.--A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.'; and

"768.06 Comparative negligence.--No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence.If the plaintiff and the agents of the company are both at fault, the former may recover, but the amount of recovery shall be such a proportion of the entire damages sustained, as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant.' and

"320.45 Crossing railway trucks.--No person operating any motor vehicle upon a public road shall cross, or attempt to cross, at a point designated by the state road department as a dangerous crossing, any railroad track intersecting the road at grade other than a crossing at which there is a gate or watchman (except on electric railway tracks in an incorporated city or town) without first bringing said motor vehicle to a full stop at a distance of not less than ten feet nor more than fifty feet from the nearest rail, and that shall then look in both directions along the tracks and listen for the approach of any locomotive, car or train of cars thereon; provided, however, that the requirements of this section shall not extend to railroad tracks located within the limits of incorporated cities or towns; and provided further, that in any civil action for damages against any railroad company for alleged actionable injuries sustained by any person at any railroad crossing in this state by reason of a collision at said crossing with any engine or train of cars, the provisions of SS768.05 and 768.06 relating to liability of railroad companies in actions for negligence shall govern.'; and

"320.46 Signs at dangerous crossings.--Every railroad company operating or leasing any track intersecting a public road at grade and falling within the purview of S320.45, shall place and maintain a suitable sign board on each side of the track or tracks on the right side of the highway not less than ten feet from the ground and forty inches by fifty inches, two hundred feet from the crossing, which said board shall be painted with black lettering and white background with the following inscription thereon: 'STOP--RAILROAD CROSSING--FLORIDA LAW'; provided, that for use at night said signboard shall be equipped with a suitable mirror reflector of such size, color and description as may be approved by the State road department for use at railroad crossings, so designated that same will reflect the rays of a motor vehicle headlight; and provided further, that where railroad warning signs have already been placed, or shall hereafter be placed, at any railroad crossing by the state road department, said railroad companies shall not be required to erect or maintain additional signs or reflectors at such crossings.'; and

"320.47 Locomotive whistles.--Every railroad locomotive crossing or attempting to cross over any public highway in this state, which is within the purview of S320.45 shall be equipped with a suitable whistle in good working order, and said whistle shall be blown in such manner before said locomotive reaches the crossing, that any motor vehicle driver who has complied with S320.45 will likely be warned thereby of the approach of such locomotive or train or cars.'; and

"351.03 To post sign and ring bell at road crossing.--Every railroad company, whenever its track crosses a highway, shall put up large sign boards at or near said crossing with the following inscription in large letters on both sides of the boards: 'Look out for the cars!'In all incorporated cities and towns the said companies shall cause the bell on the engine to be rung before crossing any of the streets of a city or town, and their trains shall not go faster, through any of the travelled streets of a city or town, than at the rate of twelve miles per hour.This requirement for posting signs shall not apply to railroad crossings having signs as required by S320,46."Plaintiff avers that her said injuries and damages were each and all proximately caused by and are the proximate consequence of the negligence and carelessness of the defendant and the persons in its employ and service in the running or propelling of said train and said flat car over and along said crossing, in this:

'1.That at said time and place said defendant railroad company had obstructed the entire width of said Dothan, Alabama, and Panama City, Florida, highway, the same being the main thoroughfare through said town of Cottondale, Florida, thereby preventing any persons or vehicles from passing along said thoroughfare across said track at said time and place.

'2.Said highway was a greatly travelled public thoroughfare, and many people and vehicles crossed said railroad at said crossing at all hours of the day and of the night, and was well known by the defendant; that said highway was at the time of the collision and is now the main highway leading from Dothan, Alabama, and points north in Alabama, Georgia and other states, to Panama City, Florida; that said highway intersected at said Cottondale, Florida, with U. S. HighwayNo. 90, one of the main highways in the State of Florida; that the volume of travel over said crossing at said time was such that the defendant should have had at said time lights, flares, flagmen or signalmen, bells ringing, whistles blowing, or some other means of guarding against and preventing collisions between vehicles travelling said highway, and its trains at said crossing; that in recognition of this need of this requirement, the defendant shortly after the collision complained of, erected or caused to be erected at said crossing, barriers on each side of and approaching said crossing on said highway, with lights, as a means toward preventing collisions such as complained of hereinabove, and which barriers can be lowered as trains pass over said crossing, thus blocking and preventing the approach of vehicles on said highway over and across said crossing at such times as trains are passing over said crossing.

'3.Said defendant railroad company then and there did...