Morgan v. Mobile & O.R. Co.

• Citation: 80 So. 845,202 Ala. 461
• Decision Date: 16 January 1919
• Docket Number: 6 Div. 808
• Court: Alabama Supreme Court
• Parties: MORGAN v. MOBILE & O.R. CO.

80 So. 845

202 Ala. 461

MORGAN v. MOBILE & O.R. CO.

6 Div. 808

Supreme Court of Alabama

January 16, 1919

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action by Cecil Morgan, pro ami, against the Mobile & Ohio Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

M.T Ormond and H.A. & D.K. Jones, all of Tuscaloosa, for appellant.

Foster Verner & Rice, of Tuscaloosa, for appellee.

Statement.

MAYFIELD J.

Appellee constructed and maintains a wooden bridge along Seventh street in the city of Tuscaloosa where that street crosses its railroad track. The track where it crosses this and other streets in that vicinity is in a deep cut--20 or 30 feet deep where it crosses Seventh street. The bridge thus forms the highway across appellee's track at this point. The bridge, however, is only about 22 feet wide, while the street is about 90 feet wide. At the time of the accident there was no partition which separated the part of the bridge used by pedestrians from that part used by vehicles and other modes of travel along the bridge. The sidewalks did not lead up to the bridge, because the bridge was narrower than the streets and it being in the middle of the street. Pedestrians, however, had made paths from the sidewalks to the end of the bridge in diagonal lines.

At the time of the injury the bridge was being repaired by appellee, and, not being able to finish the repairs in one day, the workmen doing the work at nightfall placed barriers across the street at the ends of the bridge and suspended a red light from each barrier. The length of these barriers was about the same as the width of the bridge, which, as before stated, formed the whole of the highway which was used in crossing the railroad tracks, which were in a cut 20 to 30 feet below the bridge. The barriers alone would have prevented any one in vehicles from getting on the bridge, but pedestrians could walk around the end of the barriers and go upon the bridge, and could cross, though some of the planks forming the floor of the bridge had been removed, by walking on the sills and sleepers, and on planks which had been laid across the openings in the floor for temporary use only, probably for the workmen to pass from one point to another on the bridge. It appears that some pedestrians did cross the bridge in safety while it was in its then condition.

Appellant, in company with three young ladies, was coming along Seventh street after dark, and on approaching the bridge they observed the barriers and signal lights, and it was suggested by some one in the party that they could not cross the bridge, and would have to go to another street crossing; but about the time of these remarks some other persons were observed coming off the bridge, apparently having crossed it, so appellant and his party of young ladies decided to go on across. He and one young lady went around one end of the barrier, while the other two went around the other end, and all proceeded to attempt to cross. Appellant and one young lady fell into one of the holes in the bridge; appellant falling onto the track some 20 or 30 feet below, receiving a severe shock and suffering serious personal injuries. The young lady, however, caught onto the timbers and did not fall through to the ground below.

Appellant brings this his suit to recover damages for the personal injuries received in consequence of falling through the hole in the bridge.

The complaint contained eight or ten counts. The negligence alleged was in leaving the hole in the floor of the bridge while it was being repaired, and in other counts for failing to properly guard the exposed danger by adequate and sufficient barriers and lights.

To each of the counts the defendant pleaded the general issue and contributory negligence.

At the conclusion of the trial on these issues the court gave the affirmative charge for the defendant with the hypothesis which resulted in a verdict and judgment for defendant, from which plaintiff prosecutes this appeal, assigning and arguing as error the giving of the peremptory instruction as before stated.

Opinion.

We are unable to say after a careful examination of the evidence that there was error in giving the instruction to find for the defendant if the jury believed the evidence.

There is no contention that defendant was guilty of negligence in the way of obstructing the highway in placing the bridge, or in maintaining it except as to leaving the holes in the floor overnight while it was being repaired, or in failing to adequately or sufficiently guard the danger during the night by barriers and lights. The bridge was constructed and maintained under authority from the city of Tuscaloosa.

We deem it unnecessary to decide as to whether or not there was any evidence to go to the jury on the question of defendant's negligence which proximately contributed to the plaintiff's injuries, as alleged.

This is unnecessary for the reason that, if such negligence be conceded, it appears without dispute that plaintiff was guilty of contributory negligence which concurred with that of the defendant to produce the injuries suffered by him. If it be conceded that the barriers or lights were inadequate or insufficient, and the defendant was...