Rothrock v. Alabama Great Southern R. Co.

• Decision Date: 07 February 1918
• Docket Number: 7 Div. 891
• Citation: 201 Ala. 308,78 So. 84
• Parties: ROTHROCK et al. v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

78 So. 84

201 Ala. 308

ROTHROCK et al. v. ALABAMA GREAT SOUTHERN R. CO.

7 Div. 891

Supreme Court of Alabama

February 7, 1918

Appeal from Circuit Court, Etowah County; J.E. Blackwood, Judge.

Action by J.H. Rothrock and another against the Alabama Great Southern Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

E.O McCord, of Gadsden, for appellants.

Goodhue & Brindley, of Gadsden, for appellee.

McCLELLAN J.

The appellants (plaintiffs) claim damages of the appellee (defendant) resulting from a collision between appellants' automobile, while being driven by their agent, and a train of the appellee. The collision occurred at a public crossing. The issues tendered and actually litigated were those made by a count charging simple negligence and one charging wanton willful misconduct, a general traverse of these counts and pleas of contributory negligence. The contributory negligence alleged was the failure of the driver of appellants' automobile to "stop, look, and listen" before the machine was brought within the zone of danger from the approaching train.

The court correctly sustained the demurrer to the third count of the complaint. Without averring facts and circumstances that would serve to constitute mere speed of operation, over a public crossing in a village, a wrongful act, the count sought to charge that the defendant's operatives were negligent in driving this train, over such a crossing, at a speed of 40 miles per hour. In the absence of ordinance or statute, it is not a breach of duty to operate a train at any speed over such a public crossing unless the operative of the train knows that the use of the crossing by the public is so frequent and so constant as that people or property are likely, probably, in exposed positions at or about the crossing. E.T., V. & G.R. Co. v. Deaver, 79 Ala 216. But even if this was not true, prejudicial error could not be predicated of this action, since the matter asserted in count 3 was admissible under the broad averments of count 1.

Pleas 3 and 4 were not objectionable. They will be reproduced in the report of the appeal. They aver facts, not conclusions, and are hence free from the main criticism directed against either of them.

The existence of another public railroad crossing in the direction from which the train was approaching the public crossing whereat the collision occurred was immaterial to any issue in the case. Proffered testimony to that effect was excluded without error.

The court did not err in declining to allow one of the plaintiffs to testify how he "came to put that car in the shed," where it was stored after the accident. The question seeking to elicit testimony to that effect was at least susceptible of the interpretation that it called for the...