Louisville & N.R. Co. v. Loyd

• Decision Date: 16 April 1914
• Docket Number: 477
• Citation: 65 So. 153,186 Ala. 119
• Parties: LOUISVILLE & N.R. CO. et al. v. LOYD.
• Court: Alabama Supreme Court

65 So. 153

186 Ala. 119

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

No. 477

Supreme Court of Alabama

April 16, 1914

On Application for Rehearing, May 14, 1914

Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.

Action by E.D. Loyd against the Louisville & Nashville Railroad Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Mayfield J., dissenting, and Anderson, C.J., and Sayre, J., dissenting in part.

The following is charge 2: "The court charges the jury that if they believe from the evidence that the fireman on defendant's engine on said occasion did see said plaintiff in his wagon when the engine was some 100 feet or more up the track, and the plaintiff and his wagon was 30 or 40 feet from the main track, then these facts did not place any duty on defendant to take any preventive efforts to stop said train or to prevent said alleged injury."

George H. Parker, of Cullman, and Eyster & Eyster, of New Decatur for appellants.

Brown &amp Griffith, of Cullman, for appellee.

DE GRAFFENRIED, J.

The plaintiff, E.D. Loyd, while attempting to cross the main track of the Louisville & Nashville Railroad, where it crosses one of the avenues of the town of Cullman, was struck by a passing train of the defendant, and this suit was brought to recover compensation for the damages which he suffered thereby. The plaintiff was in a wagon which was drawn by one horse. The roadbed of the defendant at the point of the injury runs north and south, and, at that point, there were three tracks, two side tracks and a main track. The main track is in the middle of the roadbed and has one side track on the east side of it and one on the west side of it. The plaintiff was injured by a south-bound passenger train which was coming into Cullman from the north and which struck the plaintiff's wagon at a point about 600 feet north of the passenger station.

The evidence of the plaintiff tended to show that the avenue on which he received his injuries was one of the principal thoroughfares of Cullman, which is a town of 2,100 inhabitants, and that from 100 to 300 people crossed the avenue daily at the point where the plaintiff was struck, and that this situation had prevailed at that point for the previous five years. The evidence of the plaintiff further tended to show that the plaintiff, when he reached a point about 30 or 40 feet from the western side tracks of the defendant, stopped and looked and listened for trains, and that he neither saw nor heard the train. His evidence further tended to show that some box cars were standing on the western side track immediately north of the point of the public crossing, and that these box cars, together with some stock chutes which were north of the box cars, prevented him from seeing the train as it approached from the north. His evidence further tended to show that, having stopped, looked and listened, as above stated, he started across the defendant's track; that when he, sitting in the wagon, passed the box cars on the side track, he immediately looked north and saw the approaching train; that the space between the side track and the main line was about nine feet in width; that, when he saw the train, the head and probably the fore feet of the horse were on the main line; that he immediately attempted to turn the horse around, and in doing so threw the hind wheels of the wagon onto or very close to the main track; that the locomotive struck the hind wheels of the wagon, demolished it, and threw the plaintiff to the ground, seriously injuring him.

The plaintiff, and some of the witnesses for the plaintiff, testified that neither the bell nor the whistle of the locomotive was sounded before the plaintiff's injury, or that, if the bell rang or if the whistle was blown, they did not hear it; while some of the other witnesses for the plaintiff testified that several distinct blasts of the whistle of the locomotive were given before the plaintiff was struck. The plaintiff's witnesses also differed in their estimates as to the distance the locomotive was, from the defendant, when his horse first appeared on the main line of the defendant. Some of them placed the distance at 600 feet. The plaintiff was of the opinion that the distance was 450 feet. All the testimony shows, however, that the plaintiff received his injuries almost immediately after the horse reached the main track. A witness for the plaintiff thus describes the incident: "As the engine of No. 1 was approaching me, I turned around, and as the engine passed me I turned to keep the dust from flying in my eyes when it came against me, and I looked south down the track. When I turned around I saw a horse entering the track at the next crossing from me. When I looked down there, the horse's head was about in the center of the main line, and he just turned around in the act of going back the way he came. He was hitched to a delivery wagon. When I saw him he was turning south from me, turning from the train back into the direction from which he came. I watched the train until it got down to that crossing. It was just momentary until it was there. It hit the hind end of the delivery wagon. The horse had turned and exposed the back end of the delivery wagon, and the pilot picked it up. It went up in the air. I saw a man on the wagon." The evidence for the plaintiff further tended to show that, at the time he received his injuries, the train was traveling at the rate of 30 or 35 miles per hour.

The evidence of the defendant tended to show that there was a street or road which ran parallel with the railroad and about 200 feet therefrom, and that the plaintiff, who had sitting by him an acquaintance by the name of Robertson, drove the horse in a slow trot down this road until he reached First avenue, when he turned into the avenue, and, without stopping to look or listen, drove onto the railroad track and, before he could get off it, was struck by the train. On that subject the witness Robertson testified as follows: "We went down the street until we got to the Adkins crossing and turned to the left to cross the railroad. I never have learned the street we went down onto Adkins crossing; it is the street that goes by Steifelmeyer's. It is a street that runs parallel to the railroad on the east side of it. The street looks to be just reflecting over the main line; it looks to be nearly a hundred yards or a couple of hundred feet, or something like that. I think we traveled two blocks along that street parallel with the railroad until we got to the Adkins crossing. I don't know what the distance is, not measuring or knowing anything about how wide the streets and the blocks are. There were two blocks and two streets when I got to this other street that runs at right angles to the street I was traveling on, what is called Adkins crossing, and that is the crossing where Mr. Loyd was hurt. When we got there, we turned down that street to the left, and started in the direction of the railroad. Mr. Loyd was doing the driving at that time. The horse was going in a slow trot at that time. After we turned off that street that runs parallel with the railroad and traveled across Adkins crossing, we never came to a stop that I remember anything of. We turned to the left down that little slant in a little slow trot, as we were from the store on, we continued on and approached the railroad, and I was looking down towards the depot, and in a moment Mr. Loyd said, 'Look yonder!' and then I threw my head around and spied the train, and I jumped out of the wagon. That was the only time that I remember of the horse coming to a standstill. At the time the horse came to a stop the head of the horse was across the first rail of the main line; he had crossed the east rail. The best I can recollect, when we turned off the street that runs parallel with the railroad into the street that runs at right angles, or the Adkins crossing, we could not see a train, if we had stopped and looked for some obstacles that were in the way, lumber or cars or something, until we were pretty close to the track at that time. When we got close to the track, we could have seen it some little distance. The horse would have to get on the track before we could see a train, the best I remember. I did not see the train but a minute, and I sailed out on the other side. It seems that just as I looked at the train it made two little blows of the whistle. I do not know how close the train was to me at that time; it looked to me like it was right on us; it seemed to me after viewing the grounds everywhere like the train was about 150 or 200 feet from us probably. I have no idea at what speed the train was going, but we were going in a slow trot; wasn't no fast traveling; I reckon we were making about four miles an hour when we came to a standstill."

The evidence for the defendant further tended to show that, at the time referred to, the train was running at about 15 to 17 miles per hour; that all proper blasts from the locomotive signaling the approach of the train had been given; that the bell was being rung; and that the horse and wagon appeared so suddenly and unexpectedly upon the track, and in such close proximity to the train, that the servants of defendant in charge of the train, by the use of all modern appliances could not have prevented the injury. The evidence of the defendant further tended to show that the train, at the time of the injury, was properly equipped and properly handled, and was not being run at a rate of speed greater than was usual and customary at that point, viz., about 15 to 17 miles per hour. The engineer of the defendant testified that, when the horse first appeared, the locomotive was so close upon him that he could do nothing to avoid the...