Pollard v. Stewart
| Decision Date | 04 February 1936 |
| Docket Number | 6 Div. 878 |
| Citation | 168 So. 203,27 Ala.App. 116 |
| Parties | POLLARD v. STEWART. |
| Court | Alabama Court of Appeals |
Rehearing Denied March 3, 1936
Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.
Action for damages for personal injuries by W.S. Stewart against H.D. Pollard, as receiver of the Central of Georgia Railroad Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Pollard v. Stewart (6 Div. 938) 168 So. 205.
W.H. Sadler, Jr., of Birmingham, for appellant.
Erle Pettus and Erle Pettus, Jr., both of Birmingham, for appellee.
The plaintiff and another, riding in an automobile, approached a public crossing of the double track of defendant, and before going on the track, complied with the law to "stop, look and listen" for approaching trains. Observing no approaching locomotive, plaintiff started across defendant's tracks, at the crossing. The crossing was on a public road and served a populous section, lying up and down the valley in which is located Birmingham, Hammond Lock Town, and McElwayne, and was in frequent use by people going to and returning from Birmingham. After crossing one of the tracks and while on the other, the engine of plaintiff's car "choked down" and stopped. At the time of the stopping of the car, there was no approaching locomotive in sight. The tracks of defendant at this point ran 300 yards on a tangent to the left of plaintiff's car, in which he was sitting at the driver's seat on the left. Plaintiff began trying to start his car by use of the self-starter, choker, etc. This he continued for some three or four minutes, until the battery became weak and refused to turn the starter; his companion then got out of the car and undertook to start the car with the crank, and while so engaged, defendant's locomotive approached from the left over a grade some 300 yards away on a straight track and defendant's engineer failed to sound an alarm for the crossing as required by law. Being engrossed in an effort to start his car and to get it across the track, plaintiff did not observe the approach of the locomotive until it was within about 100 feet, when it gave a blast of the whistle after which plaintiff made an effort to get out of the car but too late. The car was struck by the locomotive, knocking it off the track and injuring plaintiff as alleged in the complaint.
It is too clear for argument or citation of authority that plaintiff was free of all negligence in going on the defendant's track at the time and in the manner testified to. It is equally clear that plaintiff was not at fault by reason of the stopping of the automobile on defendant's track. Nor, was plaintiff at fault in remaining in his car in an effort to get it off defendant's tracks, unless in doing so he incurred more risks than an ordinarily prudent man would have done under similar circumstances. 45 Corpus Juris 968(521).
Under the evidence in this case, the defendant's engineer, in charge of its locomotive, failed to blow the whistle or to ring the bell at least one-fourth of a mile before reaching the public road crossing on which plaintiff's automobile was stalled and failed to approach such crossing at such speed as to prevent accident in the event of an obstruction at the crossing. The above requirement is made obligatory on defendant by express statute. Code 1923, § 9952. Under section 9955, Code 1923, the failure to comply with Code, § 9952, places the burden on defendant to show a compliance with that section, and that there was no negligence on the part of the company or its agents which proximately caused injury to the plaintiff. This burden, under the evidence in this case, the defendant failed to discharge as an initial proposition.
In the second place, it was a question for the jury to say, under the facts and circumstances, whether defendant was guilty of subsequent negligence, in failing to stop its locomotive after...
To continue reading
Request your trial
-
Turner v. ATLANTIC COAST LINE RAILROAD COMPANY
...R. Co. v. Porter, 196 Ala. 17, 71 So. 334." (Footnote in original, 196 F.2d 1001). 4 There is nothing to the contrary in Pollard v. Stewart, 27 Ala.App. 116, 168 So. 203, because here the decedent did not go onto the tracks free of negligence and he continued to work with his car after he w......
-
Sovereign Camp, W.O.W. v. Perry, 2 Div. 139.
... ... Affirmed ... [187 So. 728] ... Clifton ... C. Johnston, of Marion, for appellant ... Arthur ... W. Stewart, of Marion, for appellee ... FOSTER, ... This is ... an action on a policy of life insurance by the beneficiary ... after the ... ...
- New York Life Ins. Co. v. Ellis, 6 Div. 944
- New York Life Ins. Co. v. Ellis, 6 Div. 915