Louisville & N.R. Co. v. Cunningham Hardware Co.

• Decision Date: 16 April 1925
• Docket Number: 1 Div. 361
• Citation: 213 Ala. 252,104 So. 433
• Parties: LOUISVILLE & N.R. CO. v. CUNNINGHAM HARDWARE CO.
• Court: Alabama Supreme Court

104 So. 433

213 Ala. 252

LOUISVILLE & N.R. CO. v. CUNNINGHAM HARDWARE CO.

1 Div. 361

Supreme Court of Alabama

April 16, 1925

Rehearing Denied May 28, 1925

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action for damages by the Cunningham Hardware Company against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Smiths Young, Leigh & Johnston, of Mobile, for appellant.

Inge &amp Bates, of Mobile, for appellee.

BOULDIN J.

The suit is in damages for injury to a truck from collision with a locomotive or tender of defendant at a grade crossing of a public street in the city of Mobile. The decision on former appeal appears in Cunningham Hardware Co. v. L. & N.R.R Co., 209 Ala. 327, 96 So. 358.

Count B lays the accident to the negligence of the watchman or flagman of defendant, one Reil, who was stationed at the crossing for the purpose of giving warning of the approach of engines and cars of defendant, and who was then and there acting within the line and scope of his employment. The demurrer takes the point that the averment of negligence is general--a mere conclusion of the pleader. The general rule, well known and long established, is that a complaint is sufficient when it states conditions from which the duty is shown, negligence as the proximate cause of the injury, and resultant damage. The quo modo need not be shown. The count before us shows the duty to give warning, and sufficiently avers injury resulting from negligence of the watchman in giving or failing to give warning signals, proximately resulting in the injury. Cases arising under certain sections of the Employers' Liability Act (U.S.Comp.St. §§ 8657-8665), wherein a case must be made within the terms of the act, and in such form as to reasonably advise the defendant of the negligence relied upon, are not in point here.

Pleas 2, B, C, and D, directed to counts A and B, set up contributory negligence on the part of the driver of plaintiff's truck in failing to stop, look, and listen, or to exercise his senses of sight and hearing before proceeding into the zone of danger. Demurrers were interposed to these pleas after the reversal of the cause on former appeal. The grounds of demurrer were: First, that there was no duty on the driver of the truck to look and listen before driving upon the track; and, second, that he had the right to rely upon the signals of the watchman.

Count A averred that the watchman negligently signaled the driver that the crossing was clear. Count B relied upon a general averment of negligence as above shown. The second ground of demurrer therefore is directed to count A and is inapt as to count B. Two questions arise: First. When the complaint counts upon the negligence of the watchman in giving a signal to proceed, is a plea setting up the general duty to stop, look and listen and answer thereto? Stated differently, is the driver of a vehicle approaching a crossing justified in relying upon the signal, and freed from the duty to look out for passing trains? Second. Where the complaint counts upon general negligence of the watchman, is a plea setting up the general duty to stop, look, and listen, as a proximate contributing cause, sufficient? This brings to view important legal questions going to the duty of both parties at such crossings, as well as the proper method of presenting such cases in pleading.

Confining ourselves to grade crossings in cities, we may say the duty of both parties to observe due care under modern conditions is more and more insistent. We deal here only with the case of a watchman--a person placed at the crossing to aid in the common use of the crossing by the railroad in the conduct of its public business, and by the public as a public passway. Speaking broadly, we think the presence and use of a watchman implies several things. Among these is the occasion for a watchman--that the crossing is beset with such dangers that he is there in response to a general duty or by direction of legal authority. Grand Trunk R. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485. The danger to the public may be enhanced by the constant or frequent presence of obstructions to observation, by numerous tracks, by much noise, or by heavy street traffic.

Again the presence of a flagman is in some sense an invitation to rely upon his directions. In fact, the general rule may be well declared, that it is the duty of a person approaching the crossing to keep a lookout for his signals and obey them. His disregard of signals is at his peril. To our thinking, this is inconsistent with the general duty to be looking elsewhere for approaching trains. Again, one aim is to facilitate traffic. Stopping to look or listen in the midst of heavy traffic may greatly impede travel, or even endanger persons who do rely upon the signals of the watchman. This brings us to say the rule should be uniform. The public should know whether to trust or mistrust him, whether to rely upon...