Payne v. Roy

Citation90 So. 605,206 Ala. 432
Decision Date13 October 1921
Docket Number6 Div. 488
PartiesPAYNE, Director General of Railroads, v. ROY.
CourtSupreme 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:

(1) Affirmative charge as to all the counts.
(2) Affirmative charge as to count 1.
(4) Affirmative charge as to count 3.
(5) Affirmative charge as to count 4.
(25) "If you believe from the evidence in this case that the plaintiff negligently drove his automobile upon the track without listening and looking, as required by law, and by his said act found himself and his automobile in a place of danger, and then undertook to extricate his automobile, and that the engineer on defendant's train discovered his situation, and by prompt use of the proper appliances on said engine undertook to stop said train and prevent said collision, but was unable to prevent it, then your verdict must be for the defendant."
(B) "I charge you that, if you believe from the evidence that the flagman on Nineteenth street crossing waved a red light in front of plaintiff, and that plaintiff saw it, and that he understood it as a danger signal of an approaching train, and that the engineer saw such a red light at the time it was alleged to have been waved in front of the plaintiff and that such signal meant to said engineer that the flagman on said crossing was warning those about to cross there of the approach of his train, that he had the right to approach said crossing with his service brakes on, and was not required to use his emergency brakes."
(C) "I charge you that, if you believe from the evidence that defendant's engineer had been signaled by the flagman on the Nineteenth street crossing to proceed to run across said crossing, and that said flagman had also by the same act and signal notified plaintiff of the approach of said train, and that plaintiff saw such signal, and disregarded the same, and tried to cross said track, you cannot find for the plaintiff under count 1 of the complaint."
(D) "I charge you that, if the flagman on Nineteenth street signaled plaintiff to stop, and plaintiff saw said signal in time to stop his automobile before reaching the track of defendant, and by the same signal and act the engineer was signaled to proceed across Nineteenth street crossing, and he did so proceed across Nineteenth street, the defendant would not be guilty of willful or wanton negligence, and you cannot find for the plaintiff under the third or fourth count of the complaint."
(F) "The mere operation of a railroad train across a public street that is frequently crossed by a great many people at a high rate of speed, and colliding with plaintiff's automobile, is not of itself alone enough to constitute willful or wanton negligence when on such crossing a flagman was located who did signal such engineer that such crossing was clear, and that no one was attempting to cross thereon, and the said engineer then and there acted upon such signal."
(G) "I charge you that, if you believe the evidence in this case, you must find that the person in charge of defendant's train was not guilty of negligence or wantonness."
(H) "I charge you that, if you believe the evidence in this case, you must find that the person in charge of the defendant's locomotive was not guilty of negligence or wantonness."

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.

ANDERSON C.J.

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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11 cases
  • J. H. Burton & Sons Co. v. May
    • United States
    • Alabama Supreme Court
    • January 22, 1925
    ...Watson, 183 Ala. 326 334, 335, 62 So. 859; Odon-Elliott Lbr. Co. v. Daniel-Gaddis Lbr. Co., 210 Ala. 582, 98 So. 730. In Payne v. Roy, 206 Ala. 432, 435, 90 So. 605, court declared, as to the discretion of trial courts to limit cross-examination, that this discretion does not go to the exte......
  • Weatherford v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 20, 1979
    ...64 So. 648 (1914). On redirect examination the State may explain or rebut discrediting facts brought out by the defense. Payne v. Roy, 206 Ala. 432, 90 So. 605 (1921); Jones v. State, 22 Ala.App. 141, 113 So. 478 (1927); Whatley v. State, 144 Ala. 68, 39 So. 1014 The appellant contends that......
  • Bracewell v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 12, 1986
    ...authorizing a denial to a party the right to explain or qualify discrediting facts brought out by the opposite side." Payne v. Roy, 206 Ala. 432, 435, 90 So. 605 (1921). Although defense counsel was entitled to show why James Bracewell did not testify at his brother's first trial, there is ......
  • Southern Ry. Co. v. Jarvis
    • United States
    • Alabama Supreme Court
    • October 24, 1957
    ...Miles v. Hines, 205 Ala. 83, 87 So. 837; Alabama Great Southern R. Co. v. Moundville Motor Co., 241 Ala. 633, 4 So.2d 305; Payne v. Roy, 206 Ala. 432, 90 So. 605. The affirmative charge was properly refused to the Assignments of Error 6 and 22 The appellant in Assignments of Error 6 and 22 ......
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