Louisville & N.R. Co. v. Webb

• Court: Alabama Supreme Court
• Writing for the Court: STONE, C.J. STONE, C.J.
• Citation: Louisville & N.R. Co. v. Webb, 8 So. 518, 90 Ala. 185 (Ala. 1890)
• Decision Date: 09 December 1890
• Parties: LOUISVILLE & N. R. CO. v. WEBB.

8 So. 518

90 Ala. 185

LOUISVILLE & N. R. CO. v. WEBB.

Supreme Court of Alabama

December 9, 1890

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Hewitt, Walker & Porter and Thos. G. Jones for appellant.

J J. Banks and Cabanis & Weakley, for appellee.

STONE C.J.

The injury in this case was suffered in the city of Birmingham at a point on Twenty-Fourth street where the defendant corporation and the Alabama Great Southern Railroad cross that street, on tracks parallel with each other, and about 11 feet apart. The business of plaintiff, Webb, was near the crossing, and he was familiar with the place, and with the fact that the two railroads crossed the street at that place. Both the testimony, and the diagram attached to the transcript, show that this crossing was within the area used by the defendant for switching purposes, and that its switch-engine, in doing it its work, frequently crossed at that crossing. Plaintiff was returning from his dinner to his place of business about 2 o'clock P. M., and, in reaching his destination, must cross the tracks of the two railroads. When he first approached the crossing there was a train standing on the track of the Alabama Great Southern, the track nearest to him, which extended partially across Twenty-Fourth street, and blocked up the pass-way. He waited until this train moved out of his way, which soon occurred. He then moved forward, approached the track of the defendant corporation, and was in the act of stepping on its track with a view of crossing it, when he was struck by the tender of a switch-engine moving backwards, and received the injuries for which he sues. The defense is contributory negligence. There was proof of an ordinance, of force in the city of Birmingham, which made it an offense, punishable by fine, for any railroad company to permit a locomotive engine, running on its track within said city, to move at a greater rate of speed than eight miles an hour when moving forward, and four miles an hour when moving backwards. There was a conflict in the testimony as to the rate at which the locomotive was moving when the injury was done, the several witnesses placing it all the way from 6 or 8 miles up to 25 miles an hour. The engine being moved backwards, the lowest estimate-6 miles an hour-was in excess of the limit allowed by the ordinance. So there was a conflict in the testimony as to the ringing of the bell, or other signal, required by statute to be given while an engine is moving within a village, town, or city. Code 1886, § 1144. It follows that these questions, to the extent they were material, had to be solved by the jury.

Upon other questions there was no conflict, and we may state them as undisputed facts. They are chiefly taken from the testimony of the plaintiff himself, and, when not so taken, he does not controvert them. The defendant railroad company kept and maintained a watchman at Twenty-Fourth street crossing, to warn and signal persons of approaching danger; and when the injury in this case was inflicted the watchman was at the crossing; but some 90 feet from the place of the injury. There was no obstruction between him and the plaintiff, nor between him and the approaching engine of defendant. The tender which struck the plaintiff was a high-tank tender, over which a person on the track in the direction it was being pushed, if within 30 feet of the tender, could not be seen by the engineer or fireman on the engine. As soon as the train on the Alabama Great Southern Railroad moved off, or, at furthest, as soon as plaintiff crossed its track, the track of the defendant railroad, for a hundred yards or more each way, was opened up to his view, without any intervening obstruction. Several persons, 90 to 150 feet away from him, saw his peril, and one of them hallooed to him. He himself testified that, in walking from one track to the other, he looked neither to the right nor to the left, and that he did not see the approaching engine or tender until when, warned by the halloo, it was so near to him that he could only partially escape the force of the collision, by throwing his body backwards. He testified, further, that, in walking from one track to the other, he was looking straight ahead at the flagman, who was sitting down with his flag across his lap, and looking in a different direction. There was some testimony that the flagman did signal him of his danger. In switching, the defendant corporation had frequent occasions to cross Twenty-Fourth street at the crossing we have been describing. We have thus summarized the facts deemed material to the questions to be discussed.

The question which was made a controlling one in the cases of Railroad Co. v. Shearer, 58 Ala. 672, and Railroad Co. v. Sullivan, 59 Ala. 272, does not arise in this case. There was a watchman and flagman stationed at the crossing, whose duty it was to maintain a lookout, and give notice of approaching danger. The most favorable construction of the testimony fixes the charge of negligence on the defendant corporation. To back its engine, within the limits of Birmkngham, at a greater rate of speed than four miles an hour, was a violation of the city ordinance on the subject, and placed the defendant in the wrong. That ordinance is a reasonable and humane police regulation, and ought to have been observed. This was negligence, and the greater the excess of speed over the authorized limit the more pronounced and palpable would be the negligence. So, if the watchman was not attending to his duties, and failed to warn plaintiff of his peril, when, with proper attention, he would have discovered it, this, too, was negligence, for which the defendant corporation would be liable. But there were duties resting on the plaintiff as well as on the defendant. If he was guilty of negligence which contributed proximately to the injury, then the law denies to him all right of recovery. The reason of this rule is obvious, and has been often expressed. In Railroad Co. v. Thompson, 62 Ala. 494, this court said: "It is the duty of travelers, approaching the intersection of a railroad with a public highway, to look out and listen for trains or engines; and a neglect of the duty, contributing to an injury, will avoid all right of recover for it." In Gothard v. Railroad Co., 67 Ala. 114, we quoted the following language without dissent: "As a general rule, it is culpable negligence to cross the track of a railroad at a highway crossing, without looking in every direction that the rails run, to ascertain whether a train is approaching. If a party rushes into danger, which, by ordinary care, he would have seen and avoided, no rule of law or justice can be invoked to compensate him for any injury he may receive. He must take care, and so must the other party." In Railroad Co. v. Houston, 95 U.S. 697, the language of the court was: "The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employes in these particulars was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others." And in Improvement Co. v. Stead, Id. 161, that court said: "Those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentive to caution, for their lives are in eminent danger if collision happen; and hence it will not be pretended, without evidence, that they do not exercise proper care in a given case. But, notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them,-such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case, they cannot obtain reparation for their injuries, even though the railroad company be in fault. They are the authors of their misfortune." In Durbin v. Railroad Co., (Or.) 17 P. 5, "plaintiff had passed the crossing many times before, and was familiar with it. She had always sued great care in looking for trains, but on this occasion she did not stop to look or listen. Her team came into collision with a passing engine, and she sustained considerable damage. Held, that the plaintiff was guilty of contributory negligence, and could not recover." Mr. Beach (Contrib. Neg. § 9) says: "It is tolerably well settled that, under such circumstances, [crossing a railroad track on grade,] a traveler must look up and down the track attentively, and a failure to do this is generally negligence as a matter of law."

We might add citations indefinitely, but consider the foregoing as sufficient. We regard the question as settled in Alabama by our rulings cited above; and that a failure to employ the senses on approaching a railroad crossing, when such employment of law, contributory negligence and a complete defense to a suit for injuries sustained by the negligent handling of the railroad's train, unless such negligence was so reckless or wanton as to be, in law, the equivalent of willful or intentional wrong. Tanner v. Railroad Co., 60 Ala. 621; Railroad Co. v. Copeland, 61...