Southern Ry. Co. v. Quillen

• Decision Date: 18 March 1948
• Docket Number: 8 Div. 412.
• Citation: 35 So.2d 193,250 Ala. 536
• Parties: SOUTHERN RY. CO. v. QUILLEN.
• Court: Alabama Supreme Court

35 So.2d 193

250 Ala. 536

SOUTHERN RY. CO. v. QUILLEN.

8 Div. 412.

Supreme Court of Alabama

March 18, 1948

Rehearing Denied May 13, 1948.

Mitchell & Poellnitz, of Florence, and Clopper Almon, of Sheffield, for appellant.

John C. Martin, of Sheffield, and Smith &amp Tompkins, Jas. E. Smith, Jr. and Jas. H. Tompkins, all of Tuscumbia, for appellee.

FOSTER Justice.

This is an action under the homicide statute, Code 1940, Tit. 7, § 123, in which plaintiff obtained a judgment, and the Southern Railway Company prosecutes this appeal.

The case went to the jury on counts 4 and 6, and the appellant to which we will refer as the defendant, insists that both of those counts are subject to the demurrer interposed.

That question involves the real heart of the controversy, and therefore, it is necessary, in order that those counts may be properly analyzed, to state the nature of the case as made by the evidence. It is that in the city of Sheffield a highway and paved street extend south, which is the main artery to Tuscumbia, and it is known as Montgomery Avenue. It is one hundred feet wide: the tracks of the defendant cross that street extending east and west. There are several tracks which parallel each other, making this crossing. The street is paved at and south of this crossing for a width of seventy feet from the west toward the east, leaving thirty feet of the street unpaved. North of the crossing the whole one hundred feet is paved. The railroad tracks therefore extend across that thirty feet, which is still unpaved. South of the railroad tracks there are various obstructions in the thirty foot strip east of the pavement, consisting of poles, an open sewer, weeds and grass, and uneven terrain; and it is not used by the public for any purpose, or fit for use in its present condition.

The deceased was found dead lying across the rails of the south track at said crossing. There was no indication of a violent injury. The contention of plaintiff is that deceased's foot was caught in one of the rails, causing him to fall, and his neck struck the opposite rail. The only charge of negligence against the defendant is in substance in failing to have its line of rails flush with the level of the ground. At this point, there was no general use by the public of the thirty foot space on the east side of Montgomery Avenue, and south of the railroad, for any purpose whether vehicular or pedestrian. Across the tracks north, the paved sidewalk ended at the approach of the railroad crossing, so that persons traveling farther south on Montgomery Avenue went down on the paved portion, since there was no other way.

There was some evidence that plaintiff's intestate had been drinking or was drunk. How he was caused to fall or did fall is not certain, and in fact the defendant insists that there is nothing upon which to predicate a reasonable inference as to how it occurred.

The plaintiff claims that the jury was justified in finding that the raised rails and crossties at this point were dangerous and unlawful, and, therefore, in violation of the duty of the railroad company, and that from the circumstances the jury could infer that plaintiff's intestate had his foot caught under the rail and fell across the track, causing his death.

The case presents some interesting questions at law, which are raised both on the pleadings and on the introduction of evidence, in the court's general charge, as well as on the refused charges requested by defendant. We think it would be advisable at this point to analyze some of the principles of law, before trying to apply them specifically to the situations in which the questions arose.

In the first place, we have a statute in Alabama, which is not new, section 648, Title 37, Code, and which provides:

'Street and other railroad companies shall be required to keep their tracks in repair, using such rails as may be prescribed, and shall maintain and keep in repair the streets between their rails and for eighteen inches on each side, in such manner as the council may prescribe. Any public utility using the streets of the city or town shall at all times, in a manner prescribed by the council, render the use of such streets safe to vehicles and to persons, and all tracks on such street shall, when required by the council, be placed at any fixed grade, and changed, free of expense to the municipality, when found necessary.'

This statute did not impose on the railroad company, where their tracks cross streets or highways, any greater duty than that which otherwise existed with regard to it, unless the city so prescribes. 3 Elliott on Railroads, 3d Ed., section 1576(1108).

Without regard to that statute, the rule has been established in many jurisdictions, as expressed in what we suppose is a leading case, since it is quoted and otherwise referred to generally on that subject, as follows:

'But that was in a large, populous, and busy city, where a vast multitude of vehicles and people would be continuously passing and repassing. And, as we have already seen, it would be very much otherwise in respect to railroad crossings in the rural districts; and the same would to a considerable extent be true in regard to villages and many cities, or some localities in them. What is to be considered as the extent of the approaches to the railroad crossing must be determined by what is reasonable in the particular case, and this is fixed, for the time being at least, by the actual approach or structure made by the railroad company, with the acquiescence of the public and the public authorities. It does not appear from the averments of the declaration that the city of Bloomington has ever taken any steps or done anything, under sections 9, 10, and 11 of the act of March 31, 1874 [Smith-Hurd Stats. c. 114,§§ 63-65], in the way of constructing or altering the railroad crossing or the approaches thereto an Jefferson Street.' Bloomington v. Illinois Central R. R. Co., 154 Ill. 539, 39 N.E. 478, 481.

That quotation has been adopted by standard law writers an the subject, and the opinions in many cases. 3 Elliott on Railroads, 3d Ed., section 1587 (1114 e); 51 Corpus Juris 651, notes 98-99, page 660, note 66; 105 A.L.R. 560 et seq.; Chicago, R. I. & P. R. R. Co. v. Redding, 124 Ark. 368, 187 S.W. 651, 1 Ann.Cas. 1918D, 183; Cleveland, C. C. & St. L. R. R. Co. v. Johns, 106 Ill.App. 427.

It is thus expressed in 3 Elliott on Railroads, 3d Ed. 1587 (1114 e):

'The question is sometimes important as to the width of the highway crossing to be maintained by a railroad company. Here it seems a sensible rule that the railroad company must construct and maintain crossings and approaches for the entire width of the street in populous and busy cities where great numbers of vehicles and people use them. But where a few people and vehicles use the crossings, the width to be constructed and maintained is to be determined largely by what is reasonably required to accommodate the public travel over such crossings and it has been observed that this 'is fixed, for the time being at least, by the actual crossings and approaches which are made by the railroad companies with the acquiescence of the public and the public authorities.''

We think the principle, which we have quoted above, is one which should be our guide in the consideration of the sufficiency of counts 4 and 6 here involved, and the admissibility of certain evidence which was offered, and otherwise where the question is presented.

Plaintiff relies largely upon a case decided by our Court of Appeals, Birmingham Ry., Light & Power Co. v. Donaldson, 14 Ala.App. 160, 68 So. 596, and also the cases of Montgomery St. Ry. Co. v. Smith, 146 Ala. 316, 39 So. 757, and Alabama Power Co. v. Lewis, 224 Ala. 594, 141 So. 229.

Count 4 of the complaint in the instant case was an attempt to appropriate for present purposes count 1 in the Donaldson case, supra, which was held not to be subject to the grounds of demurrer interposed. But there are some very material distinctions for consideration between count 4 here, and count 1 as there discussed.

In the first place, the street intersection in the Donaldson case supra, was in the city of Birmingham where Nineteenth Street intersects Sixth Avenue. There seems to have been no question considered in the analysis of that count as to whether there would be a different situation in a different sort of locality, knowing evidently that that particular...