Saxon v. Central of Georgia Ry. Co.

• Decision Date: 08 April 1915
• Docket Number: 565
• Citation: 192 Ala. 434,68 So. 313
• Parties: SAXON v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

68 So. 313

192 Ala. 434

SAXON v. CENTRAL OF GEORGIA RY. CO.

No. 565

Supreme Court of Alabama

April 8, 1915

Appeal from Circuit Court, Coosa County; A.H. Alston, Judge.

Action by J.H. Saxon against the Central of Georgia Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Riddle Ellis & Riddle, of Goodwater, for appellant.

Barnes & Brewer, of Opelika, for appellee.

GARDNER J.

Suit by appellant against appellee for damages for personal injury received at a public road crossing in the town of Goodwater. Trial was had upon counts A and B, count A relying for recovery upon simple negligence, and count B upon wanton, or willful wrongful conduct in the operation of the engine by the servants of the appellee. After a careful review of this record we do not find support for this latter count, and it may be here eliminated from consideration. The material averments of count A were that while the plaintiff was in the act of crossing the railroad at the public road crossing in the town of Goodwater, in a buggy drawn by a mule, and while the mule was upon the track the servants of defendant, acting within the scope of their employment, ran or backed an engine over the track which the mule was in the act of crossing, in such close proximity to said mule that it became necessary for plaintiff to rein the mule around to prevent the same from being struck by said engine, and as a proximate consequence thereof the plaintiff was thrown from the buggy against the ground, sustaining injuries etc. At the conclusion of the evidence, the court, upon the request of the defendant in writing, gave the affirmative charge in its behalf. This is the question of prime importance to be treated here.

There was evidence tending to show that as the engine was being backed towards and partly across this public road crossing in the town of Goodwater, which crossing was in constant use by the public, the whistle on defendant's engine was not blown, nor the bell rung, and this would appear as sufficient (the injury resulting as a proximate consequence thereof) to make out a prima facie case as for simple negligence for submission to the jury. Code, 1907, §§ 5473-5476; Weatherly v. N.C. & St. L. Ry., 166 Ala. 575, 51 So 959; L. & N.R.R. Co. v. Loyd, 65 So. 153.

"But this negligence, no more than other, does not necessarily make the railroad company liable for all injuries at crossings the result of collisions with its trains. This negligence or failure to comply with the statutory requirements, like all other negligence, in order to render the railroad company liable, must be actionable, and must proximately contribute to the injury complained of. If the injury complained of is the result of plaintiff's negligence, or if his negligence concurred with the simple negligence of defendant's--of failing to comply with the statute or ordinance--in producing the injury complained of, the plaintiff cannot recover. These duties required of railroads at crossings, by statute or ordinance, are no more sacred or binding than are other duties imposed by the common law, which have been announced by the courts and text-writers on the subject, no more sacred or binding on the railroad than are the duties which the common law of this country has enjoined upon the public in crossing railroad tracks, often declared by the courts, among which is the duty to stop, look, and listen before crossing the track." Weatherly v. N.C. & St. L. Ry., supra.

"It is equally clear on principle and authority that this duty must be performed at such time and place with reference to the particular situation in each case as will enable the traveler to accomplish the purpose the law has in view in its imposition upon him. He must stop so near to the track, and his survey by sight and sound must so immediately *** preclude the injection of an element of danger from approaching trains into the situation between the time he stopped, looked, and listened and his attempt to proceed across the track." Central of Ga. Ry. Co. v. Barnett, 151 Ala. 407, 44 So. 392.

The duty of one in crossing a track at a public road crossing to stop, look, and listen is commented upon extensively, and many authorities are cited, in the case of L. & N.R.R. Co. v. Williams, 172 Ala. 560, 55 So. 218, and the question needs no extended consideration here.

Doubtless the fact that the plaintiff's evidence showed that while he did stop, look and listen before going upon the track, yet this was some 30 or 35 feet from the track, and at a place where his view was obstructed by embankments and a stock pen and that, without again exercising such precaution, he drove onto the track, which was downgrade from such point, with his mule trotting, influenced the court to give the affirmative charge for defendant upon the theory of contributory negligence, as shown by the...