Roberts v. Louisville & N.R. Co.

• Decision Date: 19 January 1939
• Docket Number: 1 Div. 36.
• Citation: 237 Ala. 267,186 So. 457
• Parties: ROBERTS v LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

186 So. 457

237 Ala. 267

ROBERTS v LOUISVILLE & N. R. CO.

1 Div. 36.

Supreme Court of Alabama

January 19, 1939

Rehearing Denied Feb. 16, 1939.

Appeal from Circuit Court, Mobile County; J. H. Webb, Judge.

Action for damages for personal injuries by Sadie Re Roberts against Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Harry T. Smith & Caffey and Carroll T. Prince, all of Mobile, for appellant.

Smith &amp Johnston, of Mobile, for appellee.

BOULDIN Justice.

Action for personal injuries received by a passenger in an automobile in collision with a railway locomotive at a public street crossing in the City of Mobile.

Many questions are presented by assignments of error, oral arguments, and elaborate briefs. Among them, alleged errors in the oral charge of the court, even as unjudicial in manner and matter, and the result of efforts of defendant's counsel to cure such errors by withdrawal; alleged errors in given and refused charges in writing; and alleged errors in rulings on pleadings, and on evidence.

We deal first with the question, stressed in argument, whether there was a case for the jury. If not, and there was no error, in rulings on pleadings or evidence, injurious to plaintiff as affecting this question, all other errors were harmless.

The collision occurred at the grade-crossing of the main track of the L. & N. Railroad on Elmira Street. This street, unpaved passes through the railroad yards, where some nine or ten tracks run parallel and, save for the main track and passing track, were regularly used for storage of cars.

Plaintiff was riding in a coupe, designed as a two-passenger car. Four persons, the plaintiff, her husband and two other men, were riding on the one seat. The husband was driving, the two other men were on the seat to his right, and the plaintiff was seated on the knees of the man on the right. About ten o'clock at night this automobile, moving on Elmira Street, entered the railway yards, passed over the several storage tracks, and came in collision with the locomotive on the main line, the last of the tracks to be crossed. The locomotive was pulling a passenger train. The automobile ran into the side of the locomotive, near to and in front of the cab, some thirty-four feet back from the nose of the pilot.

The complaint counted, among other things, on negligence in the operation of the train at an unlawful speed at the time and place as a proximate cause of the injury.

At that time the City of Mobile had an ordinance fixing the speed limit of trains at eight miles per hour.

Admittedly this train was moving approximately twenty miles per hour. This was the regular scheduled speed at this point, long observed in the movement of this train. Such ordinance is expressive of the view of the City Governing Body that the public safety demands the running of trains within the speed limit fixed thereby. When such ordinance is not subject to challenge for illegality, it has the force of law. Hence, the violation thereof is classed as negligence--simple negligence.

The question then arises, whether under the evidence in the particular case there was ground for reasonable inference that this excess speed of the train was a proximate cause of the collision.

If the negligence of the driver, not imputable to the passenger, and the negligence of the trainmen in operating at unlawful speed, were concurring proximate causes of the injury, the plaintiff is due to recover, if her own negligence did not intervene as a proximate cause.

While the negligence of the driver was not imputable to the passenger, she cannot recover if it affirmatively appears from the whole case that negligence of defendant was not a proximate cause of the injury. Southern R. Co. et al. v. Lambert, 230 Ala. 162, 160 So. 262, and numerous authorities there cited.

Without dispute the automobile ran into the moving locomotive after the latter had entered the crossing and passed more than thirty feet beyond the line of travel, in which the automobile approached. The headlight of the engine was casting a sheen across the street before it reached the crossing. A street light, according to the driver, lit up the scene as the engine came into view. The driver testifies he did not see the engine until the very moment of the impact, when right on the locomotive.

Plaintiff testifies she did not see the locomotive at all, was not looking, had no occasion to, as she was depending on her husband to drive safely. Another occupant of the automobile says ...