Mizzell v. Southern Ry. Co.

• Decision Date: 20 December 1901
• Parties: MIZZELL v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

31 So. 86

132 Ala. 504

MIZZELL v. SOUTHERN RY. CO.

Supreme Court of Alabama

December 20, 1901

Appeal from city court of Birmingham; Chas. A. Senn, Judge.

Action by Thomas H. Mizzell against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W. H. Denson, for appellant.

Smith & Weatherly and E. D. Smith, for appellee.

McCLELLAN, C.J.

It is settled in this state that persons have the right to cross a railroad track, at least when it is not fenced, wherever they have occasion to be beyond it. Of course, the duty of exercising care must be observed. But no person has a right to use the track of a railroad as a road or path, and if a person is injured by a passing engine or train while walking on the track, or on the ends of the cross-ties by the side of the track, he cannot recover damages therefor unless the trainmen willfully or wantonly ran against him, or unless they failed to exercise due care to avoid striking him after they became aware of his peril, and such failure contributed to the injury. The uncontroverted evidence in this case shows that when Mizzell, the plaintiff, was stricken by the tender of the engine which was being run backwards, he was not in the act of merely crossing defendant's track, but, having crossed over the rails, he was proceeding along the side of the track on the ends of the cross-ties. There was no evidence of willfulness or wantonness on the part of the trainmen. Nor was there any evidence tending to show that they were ever aware of plaintiff's presence, and hence there could be no ground for insistence that they were wanting in due care after coming to a knowledge of plaintiff's peril. To the charge that defendant's servants were guilty of negligence in failing to give signals of approach, which some of the evidence tends to support, the contributory negligence of the plaintiff in his attempted use of the track is a complete defense, and the city court properly gave the affirmative charge, with hypothesis for the defendant. The rulings on demurrer to the complaint were innocuous, whether good or bad.

Affirmed.