Sands v. Louisville & N.R. Co.

• Decision Date: 30 June 1908
• Citation: 156 Ala. 323,47 So. 323
• Parties: SANDS v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

47 So. 323

156 Ala. 323

SANDS v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Mobile County; William S. Anderson Judge.

Action by Robert M. Sands, administrator, etc., against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Denson and McClellan, JJ., dissenting.

Erwin &amp McAlleer, for appellant.

Gregory L. & H. T. Smith, for appellee.

McCLELLAN J.

Plaintiff's intestate was killed by an engine drawing a train of the defendant (appellee) at the intersection of Washington avenue, a public highway, and its line of railroad. The fifth count, as last amended, rests on the alleged subsequent negligence of the engineer after becoming aware of the peril of the intestate. The general issue seems to have been the only plea thereto. There was testimony tending to support the averments of the count, and the determination of the issue presented thereby was for the jury. The engineer, among other things, testified that when he first saw the intestate he was about a quarter of a mile from the crossing; that she was at that time driving slowly (in a one-horse vehicle) toward the crossing, and was then about 60 feet therefrom; that the train was running at the rate of 45 miles an hour; that she continued thus to approach the track "until I got I would suppose about 300 feet of the crossing, and she looked up, and about that time she began to urge her horse, and I saw then she was trying to cross, and I throwed the brakes on and reached up and blew the whistle. I was about 300 feet when she looked up and saw me, and then urged her horse forward, and I then put on the brakes. I put on all the braking power we had. There was not anything else I could do to stop the train any quicker. I had done all I could. I continued to blow the whistle. Reversing my engine would not have stopped the train any quicker. If anything it would not have stopped as quick if I had reversed the engine. If I had the driver brakes on and reversed the engine, the drivers would have locked, and would have slid on the rail, and in that way they don't hold as much."

The doctrine carrying liability for subsequent negligence where the injured party was not himself guilty of negligence subsequent to or concurring with that of the party charged contributory to the damnifying result, is settled in this state, as shown by the following authorities and those in each cited: L. & N. R. R. Co. v. Brown, 121 Ala 221, 25 So. 609; L. & N. R. R. Co. v. Hurt, 101 Ala. 34, 13 So. 130; Central of Ga. v. Lamb, 124 Ala. 172, 26 So. 969; Railroad v. Webb, 97 Ala. 308, 12 So. 374; Burgess' Case, 116 Ala. 509, 22 So. 913; Johnson v. B. R. Co. (Ala.) 43 So. 33; Cent. Ry. v. Foshee, 125 Ala. 226, 27 So. 1006; Young v. L. & N. R. R. Co. (Ala.) 45 So. 238. It has also been often adjudged here that it is the duty of an engineer, upon becoming aware of another's peril from the dangerous agency in his control, to do all in his power, to use all appliances at hand, known to prudent and skillful engineers, promptly and in proper order, to avert injury. Railway v. Pinckard, 124 Ala. 372, 26 So. 880; Campbell's Case, 121 Ala. 50, 25 So. 793, 77 Am. St. Rep. 17, and authorities supra. Under the evidence in this record the duty alleged, in the fifth count as last amended, to have been breached by the defendant's engineer, did not arise until the peril into which intestate evinced, by her movements, a purpose to place herself, viz., in undertaking to cross the track under the circumstances stated by the engineer, became known to the engineer. Up to that time he had the undoubted right to presume, and act thereon, that Mrs. Nestor would not subject herself, from a place of safety, to the danger of injury in undertaking to cross the track in front of the approaching train. So. Ry. v. Bush, 122 Ala. 483, 26 So. 168; Burson v. L. & N. R. R., 116 Ala. 198, 22 So. 457.

But after becoming aware that her purpose was to attempt the reckless act of crossing, as she did, the duty we have stated arose, and her conduct in thus exposing herself to the probably dangerous situation mentioned became a condition merely, upon which the duty rested, if unperformed--operated to afford the proximate cause of her injury, unless she was guilty of contributory negligence in a failure to perform her duty to conserve her own safety after she had become aware of her peril. As stated, the issues involved were for the jury; among them being whether, if the condition to the duty was found to exist any means at hand and known to, and as would have been applied by, prudent and skillful engineers, could have availed to avert the injury to her, or could have so reduced its speed as to have given her time in which to clear the track before the train reached the point at which she crossed, and whether the means used were those required by the last clause of section 3440 of the Code of 1896. An essential element to the imputation of wantonness, or the like, in operating a train over a public thoroughfare where people frequently and in numbers cross the track of the carrier, is that the operative in charge of the train inflicting the injury complained of knew that the crossing was used so...