Louisville & N. R. Co. v. Garrett

• Decision Date: 14 September 1979
• Citation: 378 So.2d 668
• Parties: LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. James A. GARRETT. LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. Mae B. GARRETT. 77-546, 77-547.
• Court: Alabama Supreme Court

Page 668

378 So.2d 668

LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. James A. GARRETT.

LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. Mae B. GARRETT.

77-546, 77-547.

Supreme Court of Alabama.

Sept. 14, 1979.

Rehearing Denied Dec. 21, 1979.

Patrick W. Richardson of Bell, Richardson & Herrington, Huntsville, for appellant.

Edward L. Hopper, Huntsville, for appellees.

Francis H. Hare, Birmingham, amicus curiae.

PER CURIAM.

These consolidated appeals are from an action brought by appellee James A. Garrett for personal injuries he sustained when the automobile he was driving was struck by appellant L & N's train and an action brought by appellee Mae B. Garrett, his wife, for loss of consortium.

On February 23, 1977, Mr. and Mrs. Garrett traveled from their home in Tarrant City, Alabama, to visit their son at his home in Huntsville. The couple traveled in their car with Mr. Garrett driving and Mrs. Garrett occupying the passenger's seat. Mr. Garrett, age seventy-seven, is a retired miner from U. S. Pipe & Foundry Company.

The collision occurred at about 1:48 PM at a crossing of L & N's right-of-way with Whitesburg Drive in Huntsville. The Garretts testified that they travel to Huntsville once or twice a year to visit their son and almost always travel the route which passes through the Whitesburg crossing. Mr. Garrett estimated that they had traveled through the crossing twelve or fifteen times prior to the accident.

L & N's track runs generally north-south while Whitesburg Drive, at the point of intersection with L & N's track, runs east-west. The track intersects Whitesburg Drive at an acute angle. At the time of the accident, L & N's train was proceeding south while the Garretts were proceeding east. There were no flashing lights or drop-arms at the crossing; however, there were cross-arms on both sides of the track and an overhead sign warning of the crossing. The cross-arm facing the Garretts as they approached the track was bent forward and one arm of the X was bent backwards. The sign was also rusted. Vegetation consisting of weeds, bushes, and Johnson grass had grown around the crossing which the Garretts allege obscured the view of the track. The evidence was conflicting as to the degree of visibility of the track as one approached the crossing.

Mr. Garrett testified that he stopped for a traffic light at the intersection of Whitesburg Drive and the Parkway shortly before reaching the crossing. When the light turned green, he turned onto Whitesburg Drive and proceeded toward the crossing. As he drew near, he stated he slowed down to about three or four miles per hour. He testified that he stopped the car for a few seconds a short distance from the track while a car across the track backed from a side road out into his lane, stalled, and restarted after some delay. On cross-examination, Mr. Garrett estimated that he stopped at a distance of fifteen to thirty feet from the track. Mr. Garrett claims that he looked down the track in both directions while waiting for the car to move. He stated that plant growth obscured much of his view down the track to the left, the direction from which the train approached the crossing. He described the track as looking "like it was coming out of a cotton patch." On cross-examination, Mr. Garrett stated that he looked to his right while stopped, but was already moving again before he looked to his left.

Mr. Garrett testified that after the car across the track moved, he started off at about three or four miles per hour and about the time the front wheels of his car reached the track he noticed the train to his left about 150 feet away. Mr. Garrett described his response as follows: "I cut my car to the right and shot the gas to it and jumped off to the right." He testified he remembered nothing further regarding the accident and his next recollection was waking up after emergency surgery in a Birmingham hospital. On cross-examination, Mr. Garrett admitted that he assumed the crossing was abandoned and did not intend to stop for it.

Mrs. Garrett corroborated her husband's testimony. Neither witness heard any whistle signal or bell and both stated that the train's headlight was not burning. Both car windows of the Garrett vehicle were lowered a few inches and the radio was off.

Mr. Counts, the engineer, testified that there were several grade crossings immediately north of the crossing in question, the nearest one located by a carwash a quarter of a mile away. Mr. Counts testified that he sounded the train whistle three times during the quarter-mile between the carwash crossing and the Whitesburg crossing. He also testified that a bell on the train rang continuously from the carwash crossing until after the collision. He testified that the speed of the train as it approached the Whitesburg crossing was twenty miles per hour. The maximum permissible speed was thirty miles per hour.

Mr. Counts stated that he was seated on the left side of the engine and his responsibility was to watch for traffic approaching from that direction. The long end of the engine was forward and blocked his view to the right, the direction from which the Garrett's approached the crossing. The reserve engineer and brakeman were seated on the right side of the engine with responsibility for watching for traffic in that direction. Mr. Counts testified that as the train approached the Whitesburg crossing, he saw an automobile pull up on the left and stop immediately before the train reached the crossing. He stated that he did not see the Garretts' car, coming from the right, until the front of the car passed in front of the train at which time he immediately tried to put on the emergency brake. However, the brake had already been put in full emergency by the reserve engineer. Mr. Counts stated that the train came to a stop about 200 feet past the crossing.

Mr. Smith, the reserve engineer, testified that he was sitting on the right of the locomotive as the train approached the crossing and that the bell had been rung and the whistle blown for the crossing. He stated that he first saw the Garrett vehicle coming from his right about 200 or 300 feet from the crossing. He never looked away from the vehicle from the moment he saw it and testified that it never stopped. He stated that he put the brake in emergency when the train was forty to fifty feet from the crossing and the automobile was twenty to twenty-five feet from the crossing. He stated that after he set the brake, he saw the automobile swerve to the right and then lost sight of it. He further stated that he did see one car come over the crossing just before the train arrived, but never saw a car stalled in the road. Mr. Smith also remembers that the train's headlight was burning when they left the Huntsville depot and was still on after the accident.

Mr. Bradley, the brakeman, testified that he was seated on the right side of the locomotive and that Mr. Counts blew the whistle for the carwash crossing and continued the whistle signals up until the time of the collision. He testified that the headlight was on when they left the Huntsville depot. He stated that he first saw the Garrett vehicle about 150 feet from the crossing. He testified that he kept the automobile in view at all times and that he never observed the automobile stop before reaching the crossing where it swerved to the right and left his field of vision. He estimated the speed of the automobile as about twenty-five miles per hour.

Denise Whitfield and Randy Humphries were employees of Kentucky Fried Chicken which is located near the crossing. Both parties witnessed the collision. Ms. Whitfield testified that she observed the Garrett automobile proceed toward the crossing and that it never stopped before reaching the crossing. She did state that about ten or fifteen feet from the track she saw the brake lights come on for "just a second," but did not notice any decrease in speed. She stated that the car proceeded onto the track where the train "caught the backside." She estimated that the vehicle was traveling fifteen miles per hour. Ms. Whitfield further testified that she did not see any car back onto Whitesburg Drive and stall. Randy Humphries testified he watched the Garrett car continuously from the Parkway to the crossing and never saw it stop.

Richard Kucejko testified that he was driving on Whitesburg Drive in the opposite direction of the Garretts. He stated that he stopped for the train at the crossing where he watched the Garretts approach the crossing. He testified that they never stopped. Another witness, Mr. Masters, testified that he was proceeding on Whitesburg Drive behind the Garretts at the time of the collision. He stated that he observed the Garretts' car from the Parkway to the crossing and that it never stopped nor visibly slowed down. He further stated that he did not see a car stall on the other side of the crossing.

Mr. Garrett was knocked unconscious for a short while after the collision and was taken to Huntsville Hospital for tests. He was released from the hospital that evening and the couple went on to their son's house and stayed two days through Friday. The following Tuesday, Mr. Garrett went to see his doctor in Birmingham complaining of severe headaches; a concussion was diagnosed. Mr. Garrett was instructed to return to the doctor at two-week intervals for observation and testing and was continued on coumadin, an anticoagulate, prescribed for him as a result of a mild stroke suffered in January 1976. Coumadin patients are subject to increased dangers of bleeding due to trauma. As a result of the stroke, Mr. Garrett was required to remain under continuing medical supervision.

After the second follow-up visit, Mr. Garrett went into a coma. His condition was diagnosed as a subdural hematoma caused by pressure arising from bleeding within the skull cavity, and surgery was performed within hours. Mr. Garrett recovered from the...