Louisville & N. R. Co. v. Griffin

• Decision Date: 10 October 1940
• Docket Number: 8 Div. 57.
• Citation: 198 So. 345,240 Ala. 213
• Parties: LOUISVILLE & N. R. CO. v. GRIFFIN.
• Court: Alabama Supreme Court

198 So. 345

240 Ala. 213

LOUISVILLE & N. R. CO. v. GRIFFIN.

8 Div. 57.

Supreme Court of Alabama

October 10, 1940

Rehearing Denied Nov. 14, 1940.

Appeal from Morgan County Court; Seybourn H. Lynne, Judge.

Action for damages to automobile truck by J. D. Griffin against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals, under Code 1923, § 7326.

Reversed and remanded.

Chas H. Eyster and J. W. Patton, Jr., both of Decatur, for appellant.

Russell W. Lynne, of Decatur, for appellee.

THOMAS Justice.

The error assigned is the overruling of demurrers reassigned to the complaint as amended. This presented for decision the correctness of the overruling of demurrers as refiled. Crittenden v. Speake, Ala.Sup., 198 So. 137.

The rule of good pleading that obtains, among other necessary averments required that the count aver or sufficiently show by the facts averred that the injuries of which complaint is made were received by the plaintiff as the proximate consequence of the negligence charged to defendant or the responsible agent so acting or failing to act in the immediate circumstances. Southern Railway Co. v Simmons, 237 Ala. 246, 186 So. 566; Dwight Mfg. Co v. Holmes, 198 Ala. 590, 73 So. 933.

The facts averred in the amended complaint were not subject to the grounds of demurrer assigned thereto. Alabama Produce Co. v. Smith, 224 Ala. 688, 141 So. 674; Walker v. Alabama, Tennessee Northern Ry. Co., 194 Ala. 360, 70 So. 125; Brown & Flowers v. Central of Georgia Railway Co., 197 Ala. 71, 72 So. 366.

This court announced in Central of Georgia Railway Co. v. Foshee, 125 Ala. 199, 212, 27 So. 1006, 1010, two propositions of law here applicable which have not been departed from. They are:

"That it is the duty of a person approaching the track of a railway for the purpose of crossing it to stop, and to look, and to listen, if need be (that is, if the exercise of the sense of sight does not suffice to fully disclose the situation), for approaching trains, and that the omission of this duty, followed by injury in collision with a train, locomotive, or car while attempting thus heedlessly to cross over the track, is, as matter of law, negligence on the part of the traveler, so contributing to the result as to defeat his action counting on the injury as having been produced by the simple negligence of the railway company or its employés, are propositions of such universal acceptance, of such frequent declaration by this court, and of such obvious soundness, that we shall neither discuss them nor cite authorities in support of them.

"It is equally clear, on principle and authority, that this duty must be performed at such time and place with reference to the particular situation in each case as will enable the traveler to accomplish the purpose the law has in view in its imposition upon him. He 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. * * *

"It is also thoroughly well settled that if such traveler sees a train approaching, misjudges its speed, or, for any reason, his own ability to cross before it reaches the point of crossing, and makes the attempt, and is stricken and injured, he is likewise guilty of negligence, and cannot recover for the negligence of, or imputable to, the company unless, its agents were wanting in due care to conserve his safety after they became aware of his peril; that is, either of his presence on the track, or of his purpose, indicated by his movements, to go upon the track in front of the train."

See also Hines, Director General of Railroads v. Cooper, 205 Ala. 70, 88 So. 133; Southern Railway Co. v. Summers, 232 Ala. 417, 168 So. 179.

Defendant was absolved of all simple negligence by the testimony of the plaintiff that the whistle on the locomotive was blown for the crossing. It was not on the theory of simple, but of subsequent, negligence that the cause was submitted to the jury and a verdict in favor of the plaintiff rendered.

It is well established in this jurisdiction that in order to predicate liability for subsequent negligence, the defendant must be shown to have had actual knowledge of the plaintiff in a perilous position, and thereafter negligently fail to use all the means at his command and known to skillful engineers, so circumstanced, to avert damage to the plaintiff, when to have promptly and duly used such means could have averted the accident. Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223; Wood v. Northern Alabama Ry. Co., 22 Ala.App. 513, 117 So. 495; Emmett v. Alabama Great So. Ry. Co., 226 Ala. 310, 146 So. 811; Beavers v. Southern Ry. Co., 212 Ala. 600, 103 So. 887.

On the question of subsequent negligence as applied to railroad crossing accidents, our courts have stated the rule to be that it is the duty of an engineer, on perceiving any obstruction on the track, to promptly use all the means within the power of skillful and prudent engineers to bring the train to a stop. Hurt v. Southern Ry. Co., 205 Ala. 179, 87 So. 533.

The engineer must have actual knowledge of the obstruction however. Such knowledge cannot be imputed to him because of circumstances from which the jury might infer that he had actual knowledge. Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223, and Wood v. Northern Alabama Ry. Co., 22 Ala.App. 513, 117 So. 495.

In Birmingham & A. Ry. Co. v. Campbell, 203 Ala. 296 82 So. 546, 549, the long prevailing rule is stated as follows: "Under the scintilla of evidence rule ( Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482, 517, 518, 52 So....