Miles v. Hines

• Decision Date: 02 December 1920
• Docket Number: 6 Div. 66
• Citation: 205 Ala. 83,87 So. 837
• Parties: MILES v. HINES, Director General of Railroads.
• Court: Alabama Supreme Court

87 So. 837

205 Ala. 83

MILES v. HINES, Director General of Railroads.

6 Div. 66

Supreme Court of Alabama

December 2, 1920

Appeal from Circuit Court, Marion County; T.L. Sowell, Judge.

Action by John S. Miles, against W.D. Hines, as Director General of Railroads. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

E.B. &amp K.V. Fite, of Hamilton, for appellant.

J.H Bankhead, Jr., of Jasper, for appellee.

BROWN J.

This is an action on the case by appellant against the appellee to recover damages for personal injuries resulting from a collision between the defendant's passenger train and an automobile, in which plaintiff was traveling as a passenger of one Vickery, who was driving the car. The complaint consists of two counts--the first charging wantonness on the part of the trainman, and the second simple negligence. The only plea interposed to these counts was the general issue.

The second count was sufficient to warrant a recovery for subsequent negligence, or negligence after the discovery of peril (Cent. of Ga. R.R. Co. v. Foshee, 125 Ala 199, 27 So. 1006; Brown & Flowers v. Cent. of Ga. R.R Co., 197 Ala. 71, 72 So. 366), and if error was committed by the trial court in refusing to allow the amendment to the complaint by adding the third count charging subsequent negligence, it was error without injury.

It was permissible for the plaintiff to show as of the res gestae of the occurrence under investigation that Willis Miles was killed in the same collision. Bessiere v. Ala. City, G. & A.R.R. Co., 179 Ala. 317, 60 So. 82. Therefore the court erred in sustaining defendant's objection to the questtion asked the witness Vickery eliciting testimony of this fact.

The evidence shows that Vickery's automobile, which he was driving along the public pike carrying the plaintiff and Willis Miles as passengers, came in collision with the defendant's passenger train at the crossing of the pike and the railroad; that the train approached the crossing around a curve, and through a cut--the crossing being located at or near the mouth of the cut, the embankment of which began at the road crossing and gradually increased to a height of from 12 to 15 feet. There was also evidence tending to show that several piles of cross-ties were stacked along the embankment on the south side of the railroad--the side from which the automobile approached the crossing--and there was evidence tending to show that the trainman could not see the crossing until the train was within from 50 to 200 yards of the crossing. One witness testified that a person standing within from 25 to 30 feet of the track could not see the top of the train through the cut until it was within from 50 to 100 yards of the crossing.

The evidence shows that the whistle was blown for the crossing at the "whistling post"; the whistling post being located, according to some of the witnesses at about a quarter of a mile from the crossing, and at least one witness testified that it was about a mile from the crossing. One witness testified he heard the bell ring, but whether the whistle was blown or the bell rung at short intervals as the train approached the crossing is not shown.

The evidence is also in conflict as to the speed of the train as it approached the crossing--some of the witnesses testifying it was running at the rate of 30 miles per hour, while others fix the speed as high as 55 miles per hour. The evidence is likewise conflicting as to the speed of the automobile; some of the evidence tending to show it was running from 5 to 6 miles per hour, while other evidence tends to show that the automobile was being run at a rate of from 8 to 10 miles per hour.

The evidence is also conflicting as to whether the train ran into the automobile or the automobile into the train. One witness testified that the front part of the automobile passed over the first rail just as the collision occurred; while a number of other witnesses testified that the automobile struck the driving or side rods of the locomotive from 6 to 8 feet from the front end of the locomotive. The evidence further shows that the locomotive did not cease to work steam until half the train had passed over the crossing, and that it passed beyond the crossing a distance of 370 yards or 1110 feet before it came to a stop.

It was the statutory duty of the engineer in charge of the engine under the circumstances, which some of the evidence tends to show were here present, to blow the whistle or ring the bell at least one-fourth of a mile before reaching the crossing, and to continue to blow the whistle or ring the bell at short intervals until the locomotive had passed the crossing, and also to approach and pass the crossing at such speed as to prevent accident. Code 1907, § 5473. The provisions of the statute here pertinent are:

"The engineer, or other person having control of the running of a locomotive on any railroad, must blow the whistle or ring the bell at least one-fourth of a mile before reaching any public road crossing, *** and continue to blow the whistle or ring the bell, at short intervals, until it passes such crossing. *** He must also blow the whistle or ring the bell *** immediately before entering any curve crossed by a public road, where he cannot see at least one-fourth of a mile ahead, and must approach and pass such crossing at such rate of speed as to prevent accident in the event of an obstruction at the crossing."

This statute, as has often been declared, is a regulation affecting public safety, and its manifest purpose is to safeguard against injury to persons and their property in the lawful exercise of their right to cross over the railroad tracks along the public highways. The provisions of the statute here italicized are prospective in their scope looking forward to conditions that are likely to develop between the time the locomotive enters upon a curve crossed by the public road where the engineer cannot see one-fourth of a mile ahead and the time the locomotive reaches the crossing. The duty of the engineer to bring his train under control so as to prevent accident at the crossing arises when the engine enters upon a curve crossed by a public road where he cannot see at least a quarter of...