Louisville & N.R. Co. v. Crawford

• Decision Date: 29 April 1890
• Citation: 8 So. 243,89 Ala. 240
• Parties: LOUISVILLE & N. R. CO. v. CRAWFORD.
• Court: Alabama Supreme Court

8 So. 243

89 Ala. 240

LOUISVILLE & N. R. CO. v. CRAWFORD.

Supreme Court of Alabama

April 29, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This action was brought by the appellee, W. G. L. Crawford against the appellant corporation, and sought to recover damages for personal injuries sustained by the plaintiff while in the performance of his duties as watchman on the defendant's track. The third count of the complaint was in these words: "Plaintiff also claims $20,000 as damages, for that whereas" defendant was a common carrier, and was running cars and engines on its railroad between Birmingham and Decatur, and in and through the city of Birmingham, and it was its duty to have and use in its business good and safe cars, engines, and suitable switch-engines for switching its cars in said city of Birmingham, and to employ competent and prudent employes in running its cars and engines; that disregarding this duty, on the 8th September, 1887, defendant did, by its agents and servants, "negligently and carelessly use a road-engine instead of a switch-engine, for the purpose of switching its cars in said city of Birmingham, and did negligently carelessly, and unskillfully use a box-car in front of said road-engine, so as to intercept the light from the head-light of the said engine; that on the night of said day, while the defendant was so using said road-engine, and plaintiff was faithfully discharging his duty as watchman at the crossing of said Twenty-Fourth street, under a contract with the Alabama Great Southern Railroad Company, by which it became his duty to watch-defendant's said road at said crossing and while he was so performing his duties as watchman, faithfully and carefully, he saw defendant's said road-engine standing near said crossing, and saw it move southward from said crossing; that plaintiff then walked along said street until he came to defendant's road-bed, keeping a careful lookout for trains, and while he was on said road the defendant, by its servants in charge of said road-engine, did negligently and carelessly reverse the same, without ringing the bell, blowing the whistle, placing any light or brakeman on said box-car, or giving other signal of its approach, and did propel said engine and car very carelessly towards plaintiff, and did negligently run said box-car against him in the darkness, and knocked him down on the track," whereby he was injured, etc.; and the count then alleges that said injuries sustained by the plaintiff were caused by the defendant's failure to have a switch-engine to do the switching, and its failure to ring the bell or give any other signal of approach as required by statute and by ordinance of the city of Birmingham. The defendant demurred to this count, assigning the following grounds of demurrer: (1) That said count shows that the plaintiff was at the time of the alleged injury in the employment of the Alabama Great Southern Railroad Company, and that its was his duty to keep a lookout for the approach of trains, and to give warning thereof to persons traveling along the highway, and that, by the exercise of ordinary care, he could have seen the approach of said engine and car. (2) That said count shows that it was the plaintiff's duty, at the time of the accident, to keep a lookout for approaching trains, and to give warning thereof to persons traveling; and that by a faithful performance of his duties he would have observed the approach of said engine and car. (3) Said count shows that plaintiff was guilty of gross negligence in failing to see the approaching engine and car. (4) The alleged ordinance of the city of Birmingham is not sufficiently set out in the complaint. (5) There is no averment in said complaint that it was the plaintiff's duty to go upon said railroad track at the time and place of the alleged injury. The court overruled the demurrer, and the cause was tried on issue joined on the pleas of not guilty and contributory negligence, resulting in a verdict and judgment for the plaintiff for $2,750. The defendant asked the following, among other, charges in writing, and duly excepted to their refusal by the court: "(2) If the jury believe from the evidence that the injury to the plaintiff was due to his own failure to look back while on the track, and to the failure of the defendant's servants to give a signal of warning of the approach of the engine and car, then they must find for the defendant." "(6) No failure of duty on the part of the defendant, or of its employes, will excuse the plaintiff from using his senses of sight and hearing at the time he stepped on the track and walked on it; and, if the jury believe from the evidence that the use of either sense by him would have enabled him to escape the danger, then they must find for the defendant." The defendant appeals, and assigns the overruling of the demurrer to the complaint, and the refusal of the several charges asked by it, as error.

Hewitt, Walker & Porter, for appellant.

L. C. Dickey and John F. Gillespie, for appellee.

STONE C.J.

The injury complained of in this case occurred in the night-time at the crossing of Twenty-Fourth street, city of Birmingham by the defendant corporation's railroad, and by the track of the Alabama Great Southern Railroad Company. The plaintiff was the hired employe of both of said railroad companies, and was watchman and flagman for each of them at said crossing. It was part of his duty to keep a lookout for person, vehicles, and other obstructions that might be on said crossing, and when danger was discovered to give warning, for the purpose of avoiding accident or injury. The crossing was within the area covered by the defendant railroad in its switching operations. The railroad tracks at that point are parallel and run east and west. The plaintiff was on the track of ...