Nashville, C. & St. L. Ry. v. Ragan

• Citation: 167 Ala. 277,52 So. 522
• Court: Supreme Court of Alabama
• Decision Date: 12 May 1910
• Parties: NASHVILLE, C. & ST. L. RY. v. RAGAN.

52 So. 522

167 Ala. 277

NASHVILLE, C. & ST. L. RY. v. RAGAN.

Supreme Court of Alabama

May 12, 1910

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action by G. L. Ragan against the Nashville, Chattanooga & St. Louis Railway. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The allegation of the complaint is that the crossing was unsafe and that plaintiff was in charge of a well-drilling outfit attached to a traction engine, and that in making the crossing the outfit was damaged, and that plaintiff was injured by being jammed by the same, and that it was all caused by a projecting rail. The following charge was requested by the defendant, and refused: "(5) If the crossing on defendant's track at this time by such vehicles as that driven by plaintiff was not one of the ordinary uses to which said crossing was put, but if such was an extraordinary use of said crossing, then plaintiff had no right to presume that said crossing was being kept in a condition safe for the crossing of such a vehicle; but the duty rested upon him first to ascertain whether or not such crossing was safe for such purpose, and if he failed to do so then your verdict should be for the defendant."

Walker & Spragins, for appellant.

E. O McCord, J. A. Bilbro, and John A. Inzer, for appellee.

ANDERSON J.

If a railroad constructs its road across a public road or highway the duty devolves upon it to put and keep the approaches and crossing in proper repair for the use of the traveling public. So. R. R. Co. v. Morris, 143 Ala. 628, 42 So. 17; So. R. R. v. Posey, 124 Ala. 486, 26 So 914; Patterson v. S. & N. A. R. R., 89 Ala. 318, 7 So. 437. And the traveling public have the right to assume that it will discharge this duty, and cannot be said to be guilty of contributory negligence in crossing the track without first stopping and examining the condition of said crossing. Of course, they should keep an ordinary lookout, such as prudence would suggest to any traveler, and would be guilty of contributory negligence if attempting to cross after discovery of the defect in the crossing, or might be for a failure to discover said defect, should it be open and glaring. It was a question for the jury, however, in the case at bar, as to whether or not the plaintiff discovered the defect, or should have discovered it, before attempting to cross. The proof shows that the rail on the approaching side was but little, if any, higher than the ties or earth, but that the rail on the opposite side was several inches above the roadbed, and it was a question for the jury to determine whether or not the defect was or could have been discovered...