Louisville & N.R. Co. v. Turner

• Decision Date: 22 April 1915
• Docket Number: 21
• Parties: LOUISVILLE & N.R. CO. v. TURNER.
• Court: Alabama Supreme Court

68 So. 277

192 Ala. 392

LOUISVILLE & N.R. CO. v. TURNER.

No. 21

Supreme Court of Alabama

April 22, 1915

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by Edna Turner against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

Tillman Bradley & Morrow and E.L. All, all of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

SOMERVILLE J.

The plaintiff, a woman 63 years of age, and sound of mind and body, so far as appears, was struck by the defendant's regular train while she was attempting to cross its main track at Third avenue in Bessemer, in the early forenoon.

There was evidence tending to show that the engineman did not ring the bell nor blow the whistle as the train approached and passed the crossing, as charged in the fourth count of the complaint. The decisive question on this appeal is whether or not plaintiff was guilty of contributory negligence, as a matter of law, in going upon the track as the evidence shows she did.

Considering all the evidence in connection with plaintiff's own statements, some of which are pointedly self-contradictory and resolving every conflict of fact and inference in her favor, the clear facts are as follows: As plaintiff proceeded towards the main track, she passed over two or three side tracks, and on the first side track she stopped and looked and listened for approaching trains. She then "broke right on" (to quote her own language) and continued looking up and down the track alternately until she got to the main track. Just before stepping on it, she heard a shouting at the depot not far away, and looked in that direction, and then turned and looked in the other direction and for the first time she saw the train then right upon her. After leaving the first track, she did not stop again before going upon the main track. There were some box cars on the side tracks on each side of the main track which prevented plaintiff from seeing this approaching train, even if she looked for it, until she got "nearly to the track" (to quote plaintiff's words again). But, if she had stopped and looked in the direction of the train Just before getting on the main track, she could and would have seen the train.

The principles of law which control cases of this kind are thoroughly well settled by our decisions. One who is about to cross a railroad track "must stop so near to the track and his survey by sight and sound must so immediately precede his effort to cross over it, as to preclude the injection of an element of danger from approaching trains into the situation between the time he stopped, looked, and listened and his attempt to proceed across the track. If he stops so far from the railroad as that a train which could not be seen from that point could and does reach the crossing by the time he has traversed the intervening space and gotten on the track, he negligently contributes to the resulting injury." C. of G. Ry. Co. v. Foshee, 125 Ala. 212, 27 So. 1006. L. & N.R.R. Co. v. Calvert,

172 Ala. 597, 55 So. 812, where it is further said that the law imposes "a continuing duty to see that the way is clear before attempting to cross."

Where obstructions interfere with his view of the track, it is all the more his...