Southern Ry. Co. v. Randle

• Decision Date: 01 May 1930
• Docket Number: 6 Div. 576.
• Citation: 221 Ala. 435,128 So. 894
• Parties: SOUTHERN RY. CO. v. RANDLE.
• Court: Alabama Supreme Court

128 So. 894

221 Ala. 435

SOUTHERN RY. CO. v. RANDLE.

6 Div. 576.

Supreme Court of Alabama

May 1, 1930

Rehearing Denied June 26, 1930.

Action for damages by Tom Randle against the Southern Railway Company. From a judgment granting plaintiff's motion for a new trial, defendant appeals. Transferred from Court of Appeals.

Reversed and rendered.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Stokely Scrivner, Dominick & Smith, of Birmingham, and Perry, Mims &amp Green, of Bessemer, for appellant.

Mathews & Mathews, of Bessemer, for appellee.

THOMAS J.

The assignments of error challenge only the action of the trial court in granting appellee's motion for a new trial, and thereby setting aside the verdict of the jury and judgment rendered thereon.

The complaint contained but one count, alleging, among other things, that defendant's train ran "upon, against or struck" plaintiff's truck upon a public crossing demolishing, etc.; that said damage was a proximate consequence of the wanton conduct of the agent and servants of defendant in charge of the operation and running of said train, acting in the line and scope of their employment, which said wanton conduct consisted in fact that it caused said locomotive engine or train to run upon, or against, or strike, plaintiff's truck on the occasion indicated, proximately causing him to suffer injury and damage claimed.

The motion for a new trial was granted on written charges 9 and 10, given for the defendant, which are as follows:

"9. 'Under the law it is the duty of a person intending to cross a railroad track 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 will afford the traveler the knowledge whether or not he may cross the track with reasonable safety from collision with an approaching train, and I charge you that this duty is a continuing one to the extent of excluding the injection of an element of danger in his attempt to cross, between the time he last stopped, looked and listened, if he did so, and the time he entered the zone of danger made by trains entering the crossing."'

"10. 'One who is about to cross a railroad track must stop, so near to the track, and his survey by sight and sound so immediately precede his effort to cross over it, as to preclude injection of an element of danger from an approaching train into the situation between the time he stopped, looked and listened and his attempt to proceed across the track."'

The subject of proximate consequence and proximate cause received consideration in Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610.

The respective counsel agree upon substantially the same statement of facts. They are: That the accident occurred on the 10th day of September, 1927, upon a public crossing over defendant's line of railway tracks about 7:20 a. m., at Morgan Station, in said county, by defendant's engine. At the time of the accident plaintiff's truck was being driven by Frank Mooneyhan, an employee of the plaintiff. Morgan Station is a flag station for passenger trains on defendant's line of railway track. This track at or about said point of collision runs in a general eastwardly and westwardly direction, and is straight for a distance of about one-quarter of a mile on each side of said station and the place where the county highway crosses the track, just west of the station. The railway track is down grade all the way from a point about two miles east of Morgan to a point some distance west of said crossing; and about one-quarter of a mile east of the crossing at Morgan defendant's track runs through a cut, and has a curve on it, being to the left for a westbound train. Immediately south of defendant's railroad track, and on the east side of the "county public road" (that runs in a general southerly and northerly direction as it crosses the track), there is "a roadway" which runs practically parallel with the railroad track and along the southern edge of defendant's right of way, about twenty-five feet south of the railroad track. About three hundred yards east of the county highway is the house in which Mooneyhan (plaintiff's driver) lived at the time of the accident; this house sits back from fifty to seventy-five feet south of the road running along the edge of the railroad right of way. This road stops in front of Mr. Mooneyhan's house; does not extend further in that direction, and leads from Mr. Mooneyhan's house past the station's grounds at Morgan, and makes a sharp turn into said "county highway" right at the crossing and the railroad track. There is no building or structure of any kind at said station-merely a part of the right of way boxed up with timbers and filled in with cinders as a landing place that is slightly higher than said roadway. The public highway is elevated at the point where it crosses the railroad track. Between Mr. Mooneyhan's house and the county highway there was a house occupied by Mrs. Higginbotham; that is also located on the south side of the road leading to Mr. Mooneyhan's house. There were no houses or obstructions of any kind between Mr. Mooneyhan's house and the railroad track in front of his house. The same was true as far as the point where the track entered the cut, east of his house, and beyond the crossing west of his house. There was an unobstructed view of the entire railroad track from the point where that truck emerged from the cut east of the crossing down to the public road crossing, either from Mr. Mooneyhan's house or at any point in the road, leading from his said house to the public crossing.

About four hundred feet north of the railroad track there is a road which runs in a general eastwardly and westwardly direction; to the east this road leads to Genery's Gap, and to the west it extends to Bessemer. There are two buildings between this road and the railroad track on the west side of the "county road" which crosses the track-a store that faces the road leading to Bessemer, and a dwelling situated just north of the right of way. There is another dwelling just north of the road leading to Bessemer and east of said county road, situated four or five hundred feet from the crossing where the accident occurred. These three buildings were within a radius of a quarter of a mile on the north side of the railroad crossing.

On the south side of the crossing, Mr. Mooneyhan's house and that of Mrs. Higginbotham were the only ones in a radius of a quarter of a mile or more of the railroad crossing on the east side of the county highway. On the west side of the county highway, and south of the railroad crossing, there were about fifteen or sixteen houses within a distance of about one-half of a mile from the crossing, the nearest house being about two hundred and fifty feet south of the crossing. The "county road" to the crossing extends for about one-half of a mile south thereof, serving the houses we have indicated.

At the time of the accident, 7:20 a. m., one of defendant's freight trains, consisting of twenty-one loaded cars and four empty cars, was proceeding in a westwardly direction; and the evidence showed that Mr. Frank Mooneyhan, driving the plaintiff's truck, left his home and drove along the road leading from in front of his house, which paralleled defendant's railroad track, until he reached the "county highway," and then turned to his right and started across the public road crossing at Morgan where the truck was struck by the engine. The evidence further showed that defendant's train was running late (about 7:20 a. m.), and the train was scheduled to pass Morgan about 6 o'clock a. m. The train ran about eighteen hundred feet after striking plaintiff's truck. The evidence was in conflict as to the rate of speed-some of the witnesses placing it at forty-five or fifty miles per hour, while others placed the speed at about thirty miles per hour.

The evidence was in conflict as to the signals given before the collision. The testimony on behalf of plaintiff tended to show that the bell was not being rung as the train approached the crossing, and no whistle signals were given, with the exception of two blasts of the whistle sounded just before the engine struck plaintiff's automobile. On the other hand, evidence for defendant showed that two long and two short blasts of the engine whistle were sounded about a quarter of a mile east of the crossing where the accident occurred, and that the bell on engine was being rung continuously after the engine passed the whistle posts, located about one-quarter of a mile east of the crossing. Similar or like number of whistle signals had been given on approaching a crossing which was one-half of a mile east of the crossing where the accident occurred.

The evidence further showed that defendant's fireman, as soon as he became aware of the fact that Mr. Mooneyhan, who was driving plaintiff's truck, was not going to stop upon approaching the crossing, but was attempting to cross over the same ahead of defendant's train, indicated that appearance of danger to the engineer operating the train, and he immediately applied the emergency brake, and also sounded two short blasts of the whistle, both being done immediately before the truck was struck by the pilot of the engine. The evidence showed that the plaintiff's truck approached the crossing from the opposite side of the engine from that on which the engineer was sitting, and as a result thereof said engineer did not see the truck until after the collision. The train was proceeding down grade on approach to the crossing, without working steam, and was what is termed "coasting."

The plaintiff's evidence tended to show that the crossing...