Southern Ry. Co. v. Cates

• Decision Date: 15 May 1924
• Docket Number: 6 Div. 988.
• Citation: 211 Ala. 282,100 So. 356
• Parties: SOUTHERN RY. CO. v. CATES.
• Court: Alabama Supreme Court

100 So. 356

211 Ala. 282

SOUTHERN RY. CO. v. CATES.

6 Div. 988.

Supreme Court of Alabama

May 15, 1924

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages by Andrew J. Cates against the Southern Railway Company, revived in the name of Alta Cates, as administratrix, for personal injuries resulting from a collision by an engine or train. Judgment for plaintiff in the sum of $3,000, and defendant appeals. Affirmed.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

THOMAS J.

The suit is for personal injury. The case was submitted to the jury on the first count claiming simple negligence, and pleas in short by consent.

Counsel for appellant group assignments of error and argument under the several propositions presented for decision, without waiving assignments of error. This practice is permissible (Sovereign Camp v. Craft [Ala. Supp.] 99 So. 167), and to be commended.

The question of sufficiency of the wanton count (Jackson v. Vaughn, 204 Ala. 543, 86 So. 469) was eliminated by the charge of the court. The claim for damages for personal injury being brought by Mr. Cates, that suit survived, and was duly prosecuted by his administratrix. Code 1907, § 2496.

The negligence of a defendant subsequent to the discovery of plaintiff's peril can be recovered for under a count declaring for simple negligence. B. S. R. Co. v. Harrison, 203 Ala. 284, 289, 82 So. 534; Southern Ry. Co. v. Lime Cole Bottling Co., 210 Ala. 336, 98 So. 1; Cent. of Ga. Ry. Co. v. Foshee, 125 Ala. 201, 217, 27 So. 1006; L. & N. R. R. Co. v. Calvert, 172 Ala. 597, 55 So. 812; A. G. S. R. Co. v. McWhorter, 156 Ala. 269, 47 So. 84. This is in consonance with the rule of good pleading in Ala. Fuel & Iron Co. v. Bush. 204 Ala. 658, 86 So. 541; T. C., I. & R. R. Co. v. Smith, 171 Ala. 251, 257, 55 So. 170. See earlier statement of that rule to be found in Faris v. Hoberg, 134 Ind. 269, 33 N.E. 1028, 39 Am. St. Rep. 265.

It will be noted that the statute declares the burden of proof to be upon a defendant railroad company, where injury is shown to have been caused by collision with its engine or train at a public road crossing, to show (1) compliance with the requirements of such sections (as that requiring ringing bell and blowing whistle [Code, § 5473]), and (2) that there was no negligence on the part of the company or its agents in the premises. Code,§ 5476; A. G. S. R. Co. v. McDaniel, 192 Ala. 639, 643, 69 So. 60; Weatherly v. N. C. & St. L. Ry., 166 Ala. 575, 584, 51 So. 959; B. S. R. Co. v. Harrison, 203 Ala. 284, 287, 82 So. 534. This burden of proof declared by statute does not take away from the plaintiff the burden of proving the circumstances to be such that the statute can apply-by proving either positively or circumstantially that the injury to person, stock, or other property was inflicted on or at the crossing by one of defendant's trains or engines on the track of defendant or one used by it at the time of the injury. When this is shown, the burden then shifts, under the statute, to the defendant to acquit itself of negligence. B. S. R. Co. v. Harrison, supra; L. & N. R. Co. v. Watson, 208 Ala. 319, 94 So. 551; A. G. S. R. Co. v. Wedgworth, 208 Ala. 514, 94 So. 549; Northern Ala. Ry. Co. v. White, 14 Ala. App. 228, 69 So. 308, and authorities; M. & O. R. Co. v. Borden Coal Co. (Ala. App.) 98 So. 315. So also defendant must have observed the ordinances of the city of Birmingham that were before the jury (A. G. S. R. Co. v. McDaniel, 192 Ala. 639, 643, 69 So. 60), and of which the courts take judicial knowledge by express terms of the statute, limited to the ordinances of that city. City Cleaning Co. v. Birmingham W. Co., 204 Ala. 51, 85 So. 291; Birch v. Ward, 200 Ala. 118, 75 So. 566; Gen. Acts 1915, p. 297, § 7.

Under the plea of contributory negligence, the burden of proof was assumed by the defendant to show such negligence on the part of plaintiff's intestate which proximately contributed to his injuries. It cannot be said as a matter of law or necessary inference that contributory negligence is shown when a human being is stricken in the daytime on a thoroughfare or grade crossing in a city where the public constantly pass, and where the railroad company is required to and does keep a crossing flagman to open and close that crossing to the public by use of flags or signals. A tendency of the evidence was that such flagman was present and a few feet ahead of the engine and opposite or between the plaintiff and the engine; and it is not shown by that flagman what he did in the premises. Under the unusual circumstances, the inference of fact is such as may be drawn by the jury. Cunningham Hdwe. Co. v. L. & N. R. Co., 209 Ala. 327, 96 So. 358; B. S. R. Co. v. Harrison, supra; B. R., L. & P. Co. v. Fox, 174 Ala. 657, 675, 56 South, 1013; South. Ry. Co. v. Shelton, 136 Ala. 191, 208, 209, 34 So. 194; Bromley v. B. M. R. Co., 95 Ala. 397, 11 So. 341. The respective duties of those traversing such public highway and passing along such grade crossing at a public street and railroad where flagmen were required and maintained were discussed in B. S. R. Co. v. Harrison, 203 Ala. 284, 293, 82 So. 534; Cunningham Hdwe. Co. v. L. & N. R. Co., 209 Ala. 327, 96 So. 358; L. & N.R.R. Co. v. Stewart, 128 Ala. 330, 29 So. 562; A. G. S. R. R. Co. v. Anderson, 109 Ala. 299, 19 So. 516.

In L. & N. R. R. Co. v. Webb, 90 Ala. 185, 199, 8 So. 518, 523 (11 L. R. A. 674), Mr. Chief Justice Stone said: "It is contended for appellee that because the railroad's watchman was in sight, and gave no warning, this was an invitation to him to proceed on his way, and either acquitted him of all imputation of negligence, or, at least, left it a question for the jury. If the watchman had signaled the plaintiff to advance, or, having his attention directed to him, had done any affirmative act inviting his forward movement, we would hold this would be a perfect answer to all imputation of contributory negligence, unless it was shown the plaintiff had knowledge of the approaching train. If, during the short interval elapsing between the moving of the train on the Alabama Great Southern's track, and the approach of the plaintiff to the Louisville & Nashville's track, the watchman's attention had been attracted to the plaintiff, and he had given no warning or signal of danger, we will not say this would not absolve the plaintiff from the absolute imputation of contributory negligence, such as may be ruled on as a conclusion of law. The inquiry whether, in such condition, the watchman would have time to take in the situation and give the warning, would, it would seem, present a question to be solved by the jury."

In the case of Cunningham Hdwe. Co. v. L. & N. R. Co., supra, there was affirmative action shown to have been taken on the part of the flagman which the plaintiff understood to have been an invitation to proceed; and in B. S. R. Co. v. Harrison, supra, the signal was mechanical, and had been maintained for a period sufficient to educate or induce the traveling public to observe its directions or its failure as to danger signals; and in Anderson's Case, supra, a watchman with signals was maintained, and the question of contributory negligence vel non held for the jury. In L. & N. R. Co. v. Stewart, 128 Ala. 313, 330, 29 So. 562, 568, Mr. Justice Sharpe said:

"It is true that one charged with the duty of giving warnings of the movements of trains may by others be presumed to know what trains are about to move, and that one about to cross the tracks may, when no danger is apparent to him, rely and act upon the invitation given him to cross without observing the usual cautionary requirements of stopping, looking and listening. L. & N. R. R. Co. v. Webb, 90 Ala. 185. And it not appearing that the plaintiff knew to what track the watchman's duties extended, the question of whether she was justified in relying on his signal as invitation to cross all the tracks was under the circumstances one for the jury."

It will be noted also that in Stewart's Case and the Cunningham Hdwe. Co. Case, supra, there were grade street crossings over which passed several parallel railroad tracks. In the Stewart Case there was more that one watchman for the several tracks, and there were reasonable grounds for misunderstanding as to which track the signal given by the watchman applied.

In the instant case plaintiff's intestate was walking along the west side of Twentieth street in the city of Birmingham to the grade crossing of several parallel railroad tracks on which defendant operated its trains, and at which point a flagman was required and maintained, and on approaching the same Mr. Cates was required to exercise at such time and place such care for his own safety as an ordinarily careful and prudent person would have exercised under the circumstances with reference to danger of approaching trains on said track guarded by a watchman. Boyette v. Bradley et al., Receivers, etc., 100 So. 647; Weatherly v. N. C. & St. L. Ry., 166 Ala. 575, 583, 584, 51 So. 959.

The evidence of the two eyewitnesses was sufficient to authorize the reasonable inference by the jury that plaintiff's intestate was struck and injured by defendant's engine upon a track at the time used by it in passing over the public highway at a grade grossing in the city of Birmingham, while said intestate proceeded along the way of or where the sidewalk would have been had it extended across the said railroad track or tracks intersecting Twentieth street.

The two eyewitness were: For plaintiff, Mr. McGaha, and for defendant, Mr. Lanier. The former testified that to the best of his recollection it was a Southern engine that...