Randle v. Birmingham Ry., Light & Power Co.

• Decision Date: 17 December 1908
• Citation: 48 So. 114,158 Ala. 532
• Parties: RANDLE v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

48 So. 114

158 Ala. 532

RANDLE v. BIRMINGHAM RY., LIGHT & POWER CO.

Supreme Court of Alabama

December 17, 1908

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by William J. Randle, administrator of John M. Randle deceased, against the Birmingham Railway, Light & Power Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

See 43 So. 355.

M. M Ullman, W. A. Denson, Frank S. White, and John L. Burnett for appellant.

Tillman, Grubb, Bradley & Morrow, for appellee.

DENSON J.

According to the complaint this action is based upon negligence of the defendant subsequent to discovering the plaintiff's intestate's peril. As applied to the case in hand, the law may be stated thus:

The motorman of a street car is not obliged to stop his car when he sees a man walking along the line of railroad ahead of the car, but may continue to run the car in a proper manner until he is conscious of the fact that the pedestrian is unaware or heedless of danger. When he is thus conscious, it is his duty to use all reasonable care and diligence to avoid running the car onto the man. Seeing a man walking along the track, the motorman may assume that he will turn aside and out of the way of the car; but he cannot rest on such assumption so long as to reach a point where it will be impossible for him to control the car or to give warning in time to prevent injury to the man. In other words, "if a person be seen on the track of a railway, it may be assumed, if the person be an adult, that he will leave the track before the car reaches him; and this presumption may be indulged so long as danger does not become imminent, but no longer. From the time that danger is seen to be imminent it becomes the duty of the motorman to use the highest degree of care to arrest it, and a failure to do so will constitute culpable negligence, which may or may not fix liability, as that question may be affected by contributory negligence" on the part of the person injured, after realizing his perilous situation. Railway Co. v. Bowers, 110 Ala. 328, 20 So. 345; Schneider v. Mobile, etc., Co., 146 Ala. 344, 40 So. 761; L. & N. R. R. Co. v. Brown, 121 Ala. 221, 25 So. 609; Central, etc., Ry. Co. v. Foshee, 125 Ala. 199, 218, 27 So. 1006; Duncan v. St. Louis, etc., Co. (Ala.) 44 So. 418, 422; Frazer v. L. & N. R. R. Co., 81 Ala. 185, 1 So. 85, 60 Am. Rep. 145; Galveston City, etc., Co. v. Hewitt, 67 Tex. 473, 3 S.W. 705, 60 Am. Rep. 32. The rationale of this doctrine is that "the original negligence of the injured person, whereby he is placed in a perilous position, does not in a legal sense contribute to the result. It is a remote, not a proximate, cause. It is a condition, indeed, rather than cause, remote or proximate; and the law ascribes the disaster solely to a want of due care on the part of the person controlling the agency of the injury, but for whose negligence no hurt would have been done, notwithstanding the injured party's original fault." Central, etc., Ry. Co. v. Foshee, supra; Frazer v. L. & N. R. R. Co., supra; 2 Shearman & Redfield on Neg. (5th Ed.) § 483.

The car which caused the death of plaintiff's intestate was being run along defendant's car line, which is laid longitudinally in Tenth avenue, in the city of Birmingham, and was going east to Gate City. According to the testimony offered by the plaintiff, her intestate, when killed, was walking along the track, ahead of the car, and had been so walking, for a considerable distance, and was near the point where defendant's car line crosses Forty-second street, when the car ran upon and killed him. There was a freight train, standing on the Southern Railway track, which was making considerable noise, which noise the evidence tended to show, affected the hearing of the passengers on defendant's car, and was also attracting intestate's attention. The testimony further tended to show that defendant's car was being run, when it struck the deceased, at a rate varying, according to the estimates of the different witnesses, from 8 to 30 miles an hour. It also tended to show that deceased, while walking along the track, held his hands behind him and was apparently unconscious of the approach of the car or of his peril; that the track was straight for half a mile westward from the point of accident, the direction from whence approached the car that killed intestate; that the motorman was on the front of the car, looking straight ahead; that no alarm whatever was given by the motorman, and there was no checking or slackening of the speed of the car until it was within 15 feet of the point where it ran upon deceased; and that it stopped 35 or 37 feet beyond or east of said point. Forty-Second street crossing was between the point where the accident occurred and where the Southern Railway track and defendant's track cross each other, and the evidence tended to show that the accident occurred near to and west of Forty-Second street, and about 50 yards from where the railroads crossed each other.

Howard Thomas, a...