McCullough v. L & N R. Co.

• Decision Date: 20 February 1981
• Citation: 396 So.2d 683
• Parties: A. B. McCULLOUGH v. L & N RAILROAD COMPANY. 79-812.
• Court: Alabama Supreme Court

Page 683

396 So.2d 683

A. B. McCULLOUGH v. L & N RAILROAD COMPANY.

79-812.

Supreme Court of Alabama.

Feb. 20, 1981.

Rehearing Denied March 24, 1981.

James M. Prestwood, of Prestwood & Prestwood, Andalusia, for appellant.

W. Harold Albritton of Albrittons & Givhan, Andalusia, for appellee.

BEATTY, Justice.

This is an appeal by A. B. McCullough, plaintiff, from a judgment rendered in favor of Louisville and Nashville Railroad Company, Inc. (L & N), defendant. We affirm.

The plaintiff brought this action for damages suffered when his log truck and trailer collided with the defendant's train in the daytime at the intersection of the railroad with U. S. Highway 31 in Butler County. The evidence disclosed the presence at that crossing of flashing light signals with bells, and signs bearing the words "Railroad Crossing." Up the highway in the direction of the plaintiff's approach to the crossing a large cross, containing the letters "RR," was painted on the highway. Still further back the highway bore warning strips, and a round-shaped sign bearing a cross and the letters "RR" stood beside the highway.

In his complaint the plaintiff alleged that:

At a point on said public highway the defendant operated a railroad train and a crossing. Said crossing was attended by signals to warn motorists of an approaching train.

On the date mentioned above, the warning signals were not operating due to the negligence of the defendant and as a proximate result of said negligence the defendant's train collided with the plaintiff's motor vehicle ....

These allegations were followed by allegations of injury to himself and his motor vehicle, and ad damnum claims of $6,000.00 for property damage and $75,000.00 for personal injuries.

A pre-trial hearing resulted in an order which contained this description of the plaintiff's theory of this case:

2. It was agreed by all of the parties that the following are all of the issues in controversy in this cause:

Plaintiff claims damages of the Defendant ... and as a basis for said claim, alleges that at the time and place mentioned in the complaint, the Defendant operated a railroad train and crossing on U. S. Highway # 31 in Butler County, Alabama, and that said crossing was attended by signals to warn motorists of approaching trains and the Plaintiff alleges that on the date mentioned in the complaint, the warning signals were not operating due to the negligence of the Defendant in maintaining said signals and, that as a proximate result of the negligence of the Defendant in maintaining said signals, the Defendant's train collided with the Plaintiff's motor vehicle ....

The case was tried to a jury which returned a verdict in favor of the defendant. In his appeal the plaintiff has raised several issues:

1. Whether the trial court erred in its charge to the jury on the measure of damages for injury to personal property;

2. Whether the trial court erred in sustaining the defendant's objection to a certain portion of the plaintiff's closing argument;

3. Whether the trial court erred in charging the jury on the "stop, look and listen" rule;

4. Whether it was error for the trial court to refuse the plaintiff's requested written charges on subsequent negligence;

5. Whether the trial court erred in denying the plaintiff's motion for a mistrial made in connection with defense counsel's cross-examination of the plaintiff; and

6. Whether the trial court erred in denying the plaintiff's motion for a new trial on the ground that plaintiff's cross-examination of a witness was unduly curtailed.

Issue I.

In his oral charge to the jury the trial judge stated:

Now, I need to give you some of the general rules about damages in this State. The Plaintiff claims compensation in his complaint for his personal property. The measure of damages for injury to personal property is the difference in the reasonable market value of that property immediately before and immediately after the injury, not to exceed the reasonable cost of repair.

Although cost of repair is a factor which might be considered by a jury, it is not the measure of damages for injury to personal property. See Crump v. Geer Bros., Inc., Ala., 336 So.2d 1091 (1976). However, since this erroneous charge concerned the measure of damages, it was harmless because the jury's verdict was in favor of the defendant. Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448 (1965); Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963); Rule 61, ARCP; Rule 45, ARAP.

Issue II.

During closing argument counsel for the plaintiff stated to the jury:

Now, there is no law, according to the rules of (the) road, if there is not a stop sign out there, you keep going.

To this statement the defendant's counsel objected on the ground that it was an incorrect statement of the law. The trial court sustained that objection, stating "That is not evidence."

It is not made clear to us why this argument should have been allowed. Although the plaintiff contends in brief that he should have been allowed to argue the point because (later) the court charged on the "stop, look and listen" rule, the statement manifestly is one on counsel's view of existing law and not an argument on the facts of the case. Thus the trial judge was well within his discretionary authority to control argument by sustaining this objection. As was stated in Harrison v. State, 78 Ala. 5, at 11 (1884):

Courts have a discretionary power ... to require all propositions of mere law to be argued as such to the presiding judge, and not to the jury. The jury are to receive the law from the court, and not from either the counsel, or from text-books or adjudged cases. This is a part of the police-power, so to speak, of the court, often necessary to prevent confusion and insure the orderly administration of justice in the trial court.

Not infrequently counsel are permitted to argue legal propositions, even to read legal propositions to the jury. However, as stated in City of Anniston v. Oliver, 28 Ala.App. 390, 185 So. 187 (1938):

But such permission is discretionary with the trial judge, and his refusal to permit such reading is not reversible error. The reason for this is obvious. The duty of the jury is to try the facts and apply such facts to the law as given them in charge by the court. It is the duty of the court to declare the law, and it is the duty of the jury to follow the law as given them in charge by the court....

Perceiving no error in the trial judge's action, we need not address the correctness of the counsel's statement made in argument.

Issue III.

The trial court charged the jury on the "stop, look and listen" rule:

The Court charges you that it is the law in Alabama that a person in the process of approaching and attempting to cross a railroad track, with knowledge on his part of the location of the railroad track, is under a duty to stop, look and listen for approaching trains....

The plaintiff contends that this charge contains an erroneous statement of law because it asserts an absolute duty to stop, look and listen at a crossing controlled by an automatic signal device. The plaintiff argues that the law is otherwise, in that a traveler is warranted in giving some degree of reliance upon a signal, and thus to "slow down" in such situations is sufficient.

The charge complained of is taken from APJI 34.12, and is recommended when "there is evidence showing that the person involved knew of the location of the railroad track." See Pocket Parts, APJI Civil, Aug. 1980, at 258.

One of the defendant's defenses was the contributory negligence of the plaintiff. The plaintiff himself had previous knowledge of the railroad crossing. Our decisions established that a railroad track is itself a warning of danger, Louisville & N. R. Co. v. Bailey, 245 Ala. 178, 16 So.2d 167 (1943), and that a person attempting to cross a railroad track on which cars and locomotives are liable to be moving must stop, look in both directions, and listen, before going on the track. Louisville & Nashville R. R. Co. v. Williams, 172 Ala. 560, 55 So. 218 (1911). This rule, though a correct one, does not place an absolute duty to stop, look and listen upon every traveler before he goes upon the crossing, Williams, supra. See also, Sloss-Sheffield Steel & Iron Co. v. Willingham, 240 Ala. 294, 199 So. 28 (1940), where it is observed that the traveler is bound to use ordinary care and prudence to discover the approach of trains, there being no hard and fast rule as to what constitutes contributory negligence. The evidence in this case conflicted. The plaintiff's theory was that the automatic signal device was not operating until after the accident. This view was sharply disputed by numerous defense witnesses. The plaintiff himself testified that he slowed his truck to fourteen miles per hour but didn't stop before he got to the track. The circumstances of the collision, the presence of warning signs on the highway, and the disputed evidence of lights flashing, bells ringing, and whistle blowing, made an issue of contributory negligence for the jury. The given charge, therefore, was not an erroneous charge but at most an incomplete one. It is noteworthy that the trial court did not grant the defendant's motion for a directed verdict at the close of the evidence. Had the court intended to enforce an absolute duty to stop under the circumstances of the case, doubtless he would have granted that motion because the plaintiff's own evidence affirmatively disclosed that he did not stop. Instead, however, the court submitted the case to the jury. If the plaintiff believed that the jury was misled by the instruction, which was a proper charge, the plaintiff should have requested an additional or explanatory charge, which was not done. McLemore v. Alabama Power Co., 289 Ala. 643, 270 So.2d 657 (1972). Under these circumstances we cannot conclude that the trial court erred in giving the "stop, look...