Southern Ry. Co. v. Jones

• Decision Date: 18 April 1905
• Citation: 143 Ala. 328,39 So. 118
• Parties: SOUTHERN RY. CO. v. JONES. a1
• Court: Alabama Supreme Court

39 So. 118

143 Ala. 328

SOUTHERN RY. CO. v. JONES. a1

Supreme Court of Alabama

April 18, 1905

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by Gertrude T. Jones, as administratrix of Elbert N. Jones deceased, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

James Weatherly, for appellant.

Frank S. White & Sons, for appellee.

TYSON J.

This action was brought to recover damages for wrongfully causing the death of Elbert N. Jones, plaintiff's intestate, as the result of a collision between an electric car, of which he was conductor, and a freight train of defendant. The trial resulted in a judgment for plaintiff, from which the defendant prosecutes this appeal.

The three counts of the complaint upon which the cause was tried ascribed his death to the negligence of the defendant's agents or servants in the management of the freight train. To these counts the defendant interposed the plea of the general issue and two special pleas of contributory negligence. The first of these special pleas alleged, among other things "that the death of the plaintiff's intestate was proximately caused by his own careless and reckless disregard of his own safety, in this: that in violation of section 3441 of the Code of Alabama the said plaintiff's intestate who was in charge of the train of the Birmingham Railway, Light & Power Company, failed to cause his train to come to a full stop within one hundred feet of said crossing, or, if such stop was made, that he proceeded across the crossing before he knew the way to be clear, and that in fact the way was not clear, and by reason of said way not being clear, and by reason of the reckless conduct of plaintiff's intestate as aforesaid, his death was caused." The second plea alleges a negligent disregard and violation by plaintiff's intestate of an ordinance of the city of Birmingham which made it "the duty of persons in charge of cars on the street railways of said city to cause the same to come to a full stop before crossing at the place at which a street railroad crosses a steam railroad; and after causing such car to come to a full stop it shall be the duty of the conductor to alight from the car and walk across the track in front of the car at those crossings at which no flagman or watchman is regularly stationed."

The first contention urged upon our consideration is that the evidence undisputedly and without adverse inference supported the averments of one or both of these pleas, and therefore the affirmative charge requested by defendant should have been given. The collision occurred early in the morning, before daylight. The night was very dark, rain was falling, and the wind blowing. The place was at the intersection of the crossing of the tracks of defendant and the street car company, whose tracks cross nearly at right angles to each other. The defendant had two tracks (a side and a main track) at this crossing, covering a space of more than 12 feet. The collision occurred on the main track, which was furtherest from the point at which the electric car approached the crossing. There was a structure consisting of a shed and platform that obstructed the view of those operating the electric car, which would have prevented them from seeing the approaching freight train, had it been properly lighted, until they had gotten on the side track. The place was also near to another railroad upon which trains were at the time being operated, and to the Sloss furnaces. The evidence tended to show that the freight train, which was composed of 13 box cars, was being pushed at a rapid rate of speed by an engine attached to the end furtherest from the crossing, and that it approached the crossing in the dark, without giving signals of warning, and without a light on the end of the box car; that the electric car, before going on the crossing, came to a full stop; that the deceased alighted from it, walked ahead of it to the center of the main track, and after looking in the direction of the approaching freight train signaled the motorman to cross. In obedience to his signal the electric car proceeded to cross the tracks, and when the front end of it reached the middle of the main track the conductor got aboard of it while moving, but before it could cross this track it was struck by a box car attached to the front end of the freight train, knocking the electric car some 50 feet, and producing his death.

The first point relied upon seems to be that these tendencies of the evidence do not afford an adverse inference to the conclusion, as matter of law, that the intestate violated the duty imposed upon him by section 3441 of the Code of 1896. It is said it is hardly possible to conceive that this conductor, charged with the duty of knowing the way to be clear...