Payne v. Roy
Citation | 90 So. 605,206 Ala. 432 |
Decision Date | 13 October 1921 |
Docket Number | 6 Div. 488 |
Parties | PAYNE, Director General of Railroads, v. ROY. |
Court | Supreme Court of Alabama |
Appeal from Circuit Court, Jefferson County; J.C.B. Gwynn, Judge.
Action by Sam L. Roy against John Barton Payne, as Director General of Railroads, operating the Alabama Great Southern Railway for damages for the destruction of an automobile. Judgment for the plaintiff, and the defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.
Counts 1 and 2 are simple negligence and allege the destruction of plaintiff's automobile by its being struck by a train at the intersection of a public highway, to wit, Nineteenth street in the city of Bessemer. Count 3 is for wanton injury and count 4 is for negligence after discovered peril. The following charges were refused to the defendant:
Paul Nabors testified as a witness. After stating that he did not know just how many people crossed at that crossing daily, referring to the Nineteenth street crossing, was asked, "Are there as many as a hundred?" and, after objection being overruled to the question, the witness answered, "At that time of the morning [referring to the time of the accident] there are a great many that cross there going to work." J.M. Scott testified that he was clerk of the city of Bessemer, and had been for four years and one month. He identified one of the ordinance books of the city of Bessemer, and stated that the ordinance referred to was dated prior to August, 1919, and that the book identified was one of the books of ordinance of the city of Bessemer, in August, 1919. The ordinance was then introduced, over the objection of the defendant, and was known as Ordinance No. 142, passed June 18, 1907, and approved June 19, 1907, and has the certificate of the clerk of the city of Bessemer of date of July 5, 1907, certifying that it was passed and approved on the date above mentioned, that it was published in the Bessemer Workman, a newspaper published in Bessemer, on June 21, 1907, and reported on the minutes of the city of Bessemer at page 47. The other exceptions to evidence sufficiently appear.
Smith, Wilkinson & Smith, of Birmingham, for appellant.
Goodwyn & Ross, of Bessemer, for appellee.
In proving the frequency of travel along a highway over a railroad crossing, for the purpose of establishing wantonness on the part of trainmen, the frequency of the travel should, of course, correspond with the time of the injury, as proof of travel at one hour of the day would not necessarily show a populous crossing some other hour, or proof of a populous crossing throughout the day would not establish such a crossing at night. But we do not think that the trial court erred in permitting the witness Nabors, to testify:
"At that time of morning there are a good many that cross there going to work."
True, this evidence was not definite as to the number, but what the witness meant by "a good many" could have been ascertained upon cross-examination, and this evidence was relevant and competent, and tended to corroborate the plaintiff's other evidence, tending to show that it was crossed with frequency about that hour of the day. Nor did the trial court commit reversible error in permitting the witness Scott to testify that there was a good deal of passing at 7:30. This evidence would, of course, have been of greater probative force had it related to the exact hour of the injury, but it was admissible, in connection with the other evidence, to show the nature and character of the crossing throughout the day, and there was evidence that the accident occurred in the daytime, and after travel commenced. These comments are also applicable to the objection to the proof that street cars crossed at this point. Moreover, we do not find that the plaintiff's evidence as to the frequency of travel at this hour was controverted by the defendant's evidence. On the other hand, it was, in a sense, corroborated by the fact that the defendant regarded it as such a crossing as to require a flagman there at the time of the injury.
The witness Jim Davis did not have to be an expert to testify as to the speed of the train. A.G.S.R.R. v. Hall, 105 Ala. 599, 17 So. 176. It is true, he admitted on cross-examination that he had never worked on trains, and had no opportunity to observe the speed of same, and to form an idea as to how fast they were running. But he subsequently stated that he worked on a section several months, that trains passed all the time he was on the section, and that he had seen trains run off and on all of his life. The fact that he was not an expert, or was not as close an observer as to the running of trains as others, went to the weight and sufficiency of his evidence as to the speed of the train, but did not render the same incompetent or improper.
The plaintiff substantially complied with sections 1259 and 3989 of the Code of 1907, and the amendment of section 1258 by the Acts of 1911, p. 632, as to showing the adoption and existence of the city ordinance. It is argued that, while the proof shows that it was in an ordinance book in use in August, 1919, and was adopted prior to the injury, it may...
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