Sloss-Sheffield Steel & Iron Co. v. Willingham

• Decision Date: 26 March 1940
• Docket Number: 6 Div. 485.
• Citation: 29 Ala.App. 569,199 So. 15
• Court: Alabama Court of Appeals
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. WILLINGHAM.

199 So. 15

29 Ala.App. 569

SLOSS-SHEFFIELD STEEL & IRON CO. v. WILLINGHAM.

6 Div. 485.

Court of Appeals of Alabama

March 26, 1940

Rehearing Denied May 21, 1940.

Reversed on Mandate Dec. 17, 1940.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages for personal injuries by A. O. Willingham against the Sloss-Sheffield Steel & Iron Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Certiorari granted by Supreme Court in Sloss-Sheffield Steel and Iron Co. v. Willingham, 199 So. 28.

Pleading 8(17)

The only justification for a directed verdict is when the testimony will support no other, and if there is a scintilla of evidence or any reasonable inference therefrom adverse to the party requesting it, the same should be refused.

The demurrer as originally filed was upon the following grounds:

(1) No cause of action is set out therein in favor of the plaintiff and against the defendant.

(2) The averments therein are mere conclusions of the pleader.

(3) The averments therein are too vague, uncertain and indefinite.

(4) For that it does not appear therein that this defendant breached any duty that it owed the plaintiff on the occasion complained of.

The following grounds were added by amendment:

1. For that the place or locus of the alleged collision is not set forth with sufficient certainty.

2. For that the place or locus of the alleged collision is averred in terms, if any, that are too vague, uncertain, and indefinite to apprise the defendant of the place of said collision.

3. For aught that appears to the contrary the plaintiff was a trespasser at the time and place of the alleged collision.

4. For that no sufficient facts are alleged to give rise to any duty on the part of the defendant towards the plaintiff on the occasion complained of.

5. For that it does not appear that the alleged collision occurred on a public highway.

6. For aught that appears to the contrary the alleged collision occurred at a place where plaintiff had no right to be on the occasion complained of.

7. For that it does not appear that the automobile that plaintiff is alleged to have been riding in on said occasion does not appear to have been on a public road on said occasion.

The following charges were refused to defendant:

"(c) I charge you gentlemen of the jury that it was the duty of Mr. Willingham before attempting to cross defendant's railroad track at the crossing to stop look and listen for approaching trains thereon, and the fact, if you are reasonably satisfied by the evidence that it is a fact that there was no railroad crossing sign at the crossing would not relieve the plaintiff of this duty."

"62. The Court charges the jury that a person wishing to cross the track of a railroad, at a public crossing, and seeing a train approaching, and who for himself measures the distance and time it will take to cross, and, acting upon his own judgment, undertakes to cross, assumes the risk, and, if injured, cannot hold the railroad responsible for negligence, unless his intention was apparent to the employees of the defendant operating the train, and after such perilous intention and conduct became apparent, by the exercise of due care and reasonable diligence, the injury could have been avoided."

"61. I charge you that the care required of the driver of the automobile truck was that before attempting to cross the track he should look to see if trains were passing or, if his view was so obstructed by buildings or other obstructions that he could not see the track, or an approaching train, that it was his duty to pause and listen; and, if he failed to look and listen, this would be negligence on his part, which would defeat plaintiff's right to recover for simple negligence if the driver, by looking or listening, could have prevented the collision."

"69. You are instructed by the Court, gentlemen of the jury, that in order to exercise ordinary care one must employ his faculties to observe and discover the danger, if the danger is visible and obvious or if the surrounding circumstances and conditions are such as to indicate the presence of danger to a reasonably ordinarily careful and prudent man, and failure to discover such visible and obvious danger when his attention is not attracted suddenly away from it amounts to want of ordinary care."

"21. Those in charge of the railroad trains operating over public railroad crossings are charged with the duty of operating the trains with due care; but I further charge you that they may assume, until the contrary becomes clearly apparent to them, that persons, apparently adults driving automobiles or other vehicles, will exercise due care to prevent a collision with the train by not going upon or remaining upon or in dangerous proximity to the track at a time when a train is approaching a crossing."

"13. The Court charges you that it was not only the duty of the plaintiff upon approaching the railroad crossing to stop, look, and listen, but it was his duty, gentlemen, to keep this up. It would not be a compliance with the law if at some ill-advised place, or at some place where he could not hear an approaching train, to stop and to look and to listen, and then not to repeat this precaution again. It was his duty to make this a continuous act on his part until he got to that point where he was reasonably satisfied, as an ordinarily prudent man would have been, that there was no danger of an approaching train. He must not only stop, but he must listen and look; he must not only listen, but he must stop and look; he must not only look, but he must stop and listen."

"14. It is the duty of a person intending to cross a railway to stop, look, and listen for approaching trains; and this use of the senses must be made within such nearness to the track, and under such circumstances as to afford the information to the traveler and operate as the precaution the most ordinary prudence, in such circumstances suggests; and the duty unless excused is continuing at least to the extent of excluding the injection of an element of danger into the situation between the time he last stopped, looked, and listened and the time he enters the zone of danger a moving train would create."

Kingman C. Shelburne and Bradley, Baldwin, All & White, all of Birmingham, for appellant.

Clifford Emond, of Birmingham, for appellee.

BRICKEN Presiding Judge.

Plaintiff (appellee) brought his suit against appellant for damages and injuries claimed by him to have been incurred by reason of the collision between a motor truck being driven by him, and a train of the defendant at a public highway crossing on 25th Street, North, in the City of Birmingham, Alabama. Verdict of the jury and judgment thereon was had in favor of plaintiff in the sum of $900, and from the judgment the defendant brings this appeal.

The complaint, as amended, contained only one count, which, after amendment, reads as follows:

"Plaintiff claims of the defendant the sum of Three Thousand and No/100 Dollars ($3,000.00) as damages for that heretofore, on to-wit: The 9th day of February, 1937, the defendant was operating a railroad train over a public highway at or near 24th Alley and 25th Street, North, in the City of Birmingham, Jefferson County, Alabama; that on, to-wit: said date, plaintiff was riding in a motor truck along and upon a public highway in said county and state, to-wit: 25th Street and 24th Alley, North, where railroad tracks of the defendant were then and there on grade with said highway, when said motor truck in which plaintiff was riding as aforesaid, was run against by said railroad train, and as a proximate consequence thereof plaintiff was injured and damaged as follows:

"His head, arms, limbs, back, sides, and other parts of his body were cut, bruised, lacerated, sprained, strained and injured; he was internally injured and permanently injured; plaintiff was made sick and sore and ill for a long period of time, and was caused to suffer great physical pain and mental anguish; plaintiff's nervous system was greatly shocked and impaired and permanently shocked and impaired, plaintiff was caused to lose much time from his employment, and was put to expense for medicine, medical attention and care in and about his efforts to heal and cure his said wounds and injuries, and plaintiff avers that all of his said injuries and damages were caused as a proximate result of the negligence of the defendant in and about the operation of said railroad train at said time and place."

In the statement of facts contained in appellant's brief it is said that the railroad track of the defendant was a single track and that it diagonally crosses 25th Street, North, at 24th Alley in said city of Birmingham, Jefferson County, Alabama.

The appellant has noted 24 assignments of error upon the record in this case numbered from 1 to 24, consecutively, and insist upon assignments of error numbered 1, 2, 3, 4, 5, 7, 12, 13, 15, 19, 21, 22, and 24, while assignments of error 6, 8, 9, 10, 11, 14, 16, 17, 18, 20 and 23 each, respectively, are waived by the appellant under the provisions of rule 10 of Supreme Court Practice, which is of force and effect in this court.

To the above and foregoing complaint, as amended, the defendant filed demurrers. These demurrers are set out in the report of this case.

1. In the due and orderly consideration of the various assignments of error insisted upon by the appellant in and before this court, it is deemed desirable and proper to first consider assignment of error No. 3 under which appellant insists that the trial court committed reversible error in overruling the demurrer, first filed and later amended, by defendant in the...