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

• Decision Date: 19 March 1925
• Docket Number: 8 Div. 741
• Court: Alabama Supreme Court
• Parties: NASHVILLE, C. & ST. L. RY. v. PRINCE.

103 So. 463

212 Ala. 499

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

8 Div. 741

Supreme Court of Alabama

March 19, 1925

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

Action for damages by J.L. Prince against the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, § 6, p. 450. Affirmed.

John B Tally, of Scottsboro, for appellant.

Proctor & Snodgrass, of Scottsboro, for appellee.

BOULDIN J.

The suit is in damages for injuries to plaintiff's person and to his automobile, resulting from a collision of the automobile with a locomotive of defendant at a grade crossing in the town of Stevenson.

The counts for simple negligence were withdrawn and the case went to the jury on a count for wanton injury. This count sets out the quo modo of the accident. In substance it charges that defendant, by its servants, did wantonly and recklessly without warning, propel its train over a public roadway or crossing, within the corporate limits of the town, where people were wont to cross with frequency and in great numbers--facts known to defendant's employees--at the high and dangerous "speed of about 35 or 40 miles per hour," and that the train was thus wantonly and recklessly run against the automobile.

The sole question here presented in argument is the denial of a motion for new trial on the ground that the verdict was opposed to the weight of the evidence, or that there was no evidence to support a finding of wanton and reckless conduct as charged.

The evidence, without conflict, fully supports the averments touching the conditions at the crossing. It was shown to be adjoining the business district, connected with a highway leading into Stevenson, and in constant and frequent use by persons and vehicles--facts known to the trainmen. It further appears the crossing is approached by vehicles from the south on an upgrade, reaching the level of the railroad crossing near the south tracks. Four or more tracks, those of Southern Railway and of defendant railway, are crossed. Defendant's road is double-tracked. The injury occurred on defendant's north main track. The automobile had crossed other tracks, and moved some 30 to 40 feet after reaching the level of the railroad grade. There is evidence that a water tank and trees, located on the south side and near the tracks, obstructed the view of trainmen as to vehicles approaching on the upgrade toward the crossing. The view was open after reaching the crossing. Plaintiff's contributory negligence being out of the case, these facts were pertinent only as tending to enhance danger at the crossing by excessive speed and absence of warning.

The evidence of the speed of the train at the time of the collision is greatly at variance. Five eyewitnesses for plaintiff give their estimate of speed. One, the plaintiff only, places it at 35 or 40 miles per hour; one at 30; two at 25 to 30; and one at 18 to 20. The engineer testified the train had been slowed down to about 10 miles per hour, the speed limit fixed by ordinance of the town. Several other witnesses for defendant give the speed at 10, 10 to 12, or 12 to 14, miles per hour. The evidence further tended to show the train was a fast through freight, which did not stop at Stevenson except upon signal, and that the "go ahead" signal was displayed on this occasion shortly before the train reached the crossing. The engineer testified the train had a schedule, outside of speed limit zones, of 35 to 40 miles per hour, and approached and came into Stevenson at 25 to 30 miles per hour. Some evidence tended to show there was no decrease in speed as the train reached the crossing.

It is suggested by appellant that, having alleged a speed of 35 or 40 miles per hour, the burden was on plaintiff to make the proof as alleged, and that the great weight of the evidence does not support the averment. The allegation is "about...