Louisville & N.R. Co. v. Banks

• Decision Date: 14 November 1894
• Citation: 16 So. 547,104 Ala. 508
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. BANKS.

16 So. 547

104 Ala. 508

LOUISVILLE & N. R. CO. v. BANKS.

Supreme Court of Alabama

November 14, 1894

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action by John T. Banks, administrator of the estate of W. A Thomas, deceased, against the Louisville & Nashville Railroad Company, to recover damages for the death of plaintiff's intestate, through defendant's negligence. Judgment for plaintiff, and defendant appeals. Reversed.

The action was originally brought against the present appellant jointly with the Memphis & Charleston Railroad Company, the East Tennessee, Virginia & Georgia Railroad Company and the mayor and council of Decatur. By amendment the plaintiff dismissed the suit against all the defendants except the appellant. The plaintiff's intestate was, at the time of his death, in the employ of the Louisville & Nashville Railroad Company, as a brakeman, and while upon the top of a freight train, in the discharge of his duties, was knocked from one of the cars by the timbers of a bridge over Pond street in the city of Decatur, and killed. The Nashville &amp Decatur division of the Louisville & Nashville Railroad has its southern terminus at the junction with the Memphis &amp Charleston Railroad in Limestone county, about two miles north of Decatur. From that point it uses the track, roadbed and right of way of the Memphis & Charleston Railroad Company across the Tennessee river and through the city of Decatur to a point a few feet south of Church street. At this point there is another junction, the south and north division of the Louisville & Nashville Railroad Company branching off and running in a southerly direction, while the said Memphis &amp Charleston Railroad extends on in a westerly direction. Between this latter junction and the Tennessee river there are three streets in Decatur with overhead bridges spanning the Memphis & Charleston tracks, which tracks are used by the Louisville & Nashville Railroad trains. The first bridge is the Church Street bridge, immediately north of the switch or junction; the second is the Pond Street bridge; and the third, or the one next to the river, is the Market Street bridge. These bridges each form parts of streets of the city of Decatur extending over said railroad, which, between said junction or switch south of Church street and the Tennessee river, is in a cut. This track has been thus used by both of these railroads, the appellant here and the Memphis & Charleston, since the construction and operation of the former. The bridges over the Memphis & Charleston tracks, used by both railroads, were constructed more than 40 years ago, and before the construction of the railroad of appellant. The bridges had been built and kept up by the Memphis & Charleston Railroad Company. They were not sufficiently high above the track to permit a man standing on top of a freight car, in the discharge of his duties, to pass under in an erect position, and never had been since as far back as any of the witnesses remembered. In order to pass under in safety he would have to sit down or stoop so as to clear the sill of the bridge.

Among the many charges requested by the defendant, to the refusal to give each of which it separately excepted, was the following: "If the jury believe the evidence they will find for the defendant." There were verdict and judgment for the plaintiff, assessing his damages at $5,000.

Harris & Eyster, for appellant.

Morris A. Tyng, for appellee.

HARALSON J.

There was much pleading in this case, but the view we take of it relieves us of the necessity to review the rulings of the court thereon. The case was tried on the plea of not guilty and contributory negligence on the part of the plaintiff's intestate, and to these issues we confine our investigations.

1. The duties that railroad companies owe to their emploés in respect to low bridges has received such careful consideration at the hands of this court, in the opinion of the late Chief Justice Stone, in the case of Railroad Co v. Hall, 87 Ala. 708, 6 So. 277,-a case similar in its essential features to the one in hand,-as relieves us from its further discussion at this time. We need do no more now than to summarize the principles there settled and apply to the facts of the case before us. It was there said: "When, in crossing a public highway, it becomes necessary for a railroad company to span it with a bridge, it is its duty, if reasonable and practicable, to place the structure at such an elevation as that trains, with their customary employés can pass under it unharmed;" but it was added, that this is not an absolute or unbending requirement, but yields to a reasonable extent to circumstances, as many other natural and social rights must yield to other rights and interests, which duty requires to be conserved; that in no case would it be permissible to so construct a bridge, that brakemen on top of the cars, in discharge of their duties could not avoid danger by bending or stooping, otherwise it would be a nuisance and the company guilty of gross negligence in its structure and maintenance; and whenever such a bridge is constructed below the line of absolute safety, then other duties rest on the railroad company. These other duties are specified to be, that when a brakeman is placed on a freight train, running on a road with which he is not familiar, and such train is to pass under a low bridge or bridges, notice shall be given him of the danger he is to encounter, which notice must be reasonable; that is, he must be reasonably instructed so as to put him on the lookout, and on inquiry and observation, so that he may not only be warned of the danger attending him, but inform himself of its locality and when to avoid it. But, as was said: "The whole duty is not on the railroad company. The employé must give heed to the notice and instructions given him, and must employ his senses, his reasoning faculties and his attention, alike for his own safety and the welfare of the road. If he has not been sufficiently warned or notified to enable him by proper attention and diligence to learn where the points of danger are, then this would be negligence for which the railroad company would be liable. On the other hand, if he has been sufficiently warned or notified, and from inattention, indifference, absent-mindedness, or forgetfulness, he fails to inform himself, or fails to take the necessary steps to avoid the injury, this is negligence, and he should not recover." If the company should build its bridge not of sufficient elevation for absolute safety, without some of the excuses which the law would allow for such a structure under the special circumstances of the case, then negligence is shown, and unrebutted, would, prima facie, authorize a recovery by the plaintiff receiving injury, unless overcome by proof on the part of defendant, that the plaintiff was guilty of proximate contributory negligence. As to what would constitute this contributory negligence, the court said as to the facts of that case, so like this: "If under the rules we have stated, the plaintiff was sufficiently notified or warned, and from inattention, indifference, absent-mindedness, or forgetfulness, he failed to inform himself, or failed to take the...