Southern Ry. Co. v. Lambert

• Decision Date: 21 March 1935
• Docket Number: 6 Div. 704
• Citation: 160 So. 262,230 Ala. 162
• Court: Alabama Supreme Court
• Parties: SOUTHERN RY. CO. et al. v. LAMBERT.

160 So. 262

230 Ala. 162

SOUTHERN RY. CO. et al. v. LAMBERT.

6 Div. 704

Supreme Court of Alabama

March 21, 1935

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages for personal injuries by William E. Lambert against the Southern Railway Company, Elisha B. Waller, and W.E. Fuqua. From a judgment for plaintiff, defendants appeal.

Transferred from Court of Appeals.

Reversed and remanded.

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

John W Altman and J.L. Drennen, both of Birmingham, for appellee.

BOULDIN Justice.

Action for personal injuries to a passenger in a motor vehicle caused by collision with a railway flat car at a grade crossing.

The place of the accident was at the crossing of Southern Railway tracks over Twenty-Fourth street in the city of Birmingham. It was at night. A railway freight train with some 44 cars was moving in regular course over the track. It came to a stop, as required by statute, on reaching the crossing of the Southern Railway track and that of the Louisville & Nashville Railroad.

While making the usual observations to see that the Louisville &amp Nashville track was clear, a flat car of this Southern train was at a standstill over the Twenty-Fourth street crossing. At this moment a fire truck of the city fire department, in regular course of duty, moving north on Twenty-Fourth street, ran into this flat car. The plaintiff, a fireman, was riding in his usual place on the rear of the fire truck, and received personal injury from the collision. The truck was sounding the siren and ringing the bell. The speed, according to plaintiff's evidence, was some 25 miles per hour. The stopping distance, as given by the driver of the truck, was some 10 to 12 feet. There was a street light at the crossing. There were no obstructions to view on the approach up Twenty-Fourth street. There was a slight upgrade. The truck was equipped with proper headlights. The driver testified there was a little smoke or fog. He does not contradict other witnesses to the effect that there were no such conditions of visibility as to prevent seeing an obstruction at the crossing well beyond stopping distance. The driver testifies he did not see the flat car, though looking ahead, because he was looking above the car.

The mutual right of a railway company and the traveling public at grade crossings is a recognized principle. Such use, however, involves the right of the railway company to make necessary stops with cars across the track. In this case, such stop was required by law when the locomotive reached another railroad grade crossing.

This court, in line with the great weight of authority, has declared the rule that, in the absence of statute, or special conditions of hazard to motorists, there is no duty on the railway company to provide special warning or safeguards to motorists, either in the day or nighttime, to prevent collisions with cars standing on such crossing. The law requires motorcars to be equipped with adequate headlights, and that they be not run at such speed that an obstruction, such as a freight car, cannot be discovered in time to come to a stop. Others are not required to take precautions against one's negligence. Otherwise stated, one may assume that another will take ordinary care.

So it is widely held that the negligence of the driver of the motorcar will be treated as the sole proximate cause of an injury resulting from running into a standing railway car at a crossing, unless something intervenes calling for special precautions on the part of railway employees; some condition of hazard that may lead to a collision, notwithstanding ordinary care on the part of the driver of the motorcar.

A passenger, not chargeable with the negligence of the driver, must, nevertheless, make a case of negligence on the part of defendant as a proximate cause. St. Louis-San Francisco R. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110; Berry v. Dannelly, 226 Ala. 151, 154, 145 So. 663; Gulf, M. & N.R. Co. v. Holifield, 152 Miss. 674, 120 So. 750; Gulf, M. & N.R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; Plummer v. Gulf, M. & N.R. Co. et al. (La.App.) 153 So. 322; Witherly v. Bangor & A.R. Co., 131 Me. 4, 158 A. 362; Richard v. Maine Cent. R. Co., 132 Me. 197, 168 A. 811; Cleveland, C., C. & St. L. Ry. Co. v. Gillespie, 96 Ind.App. 535, 173 N.E. 708; Pennsylvania R. Co. v. Huss, 96 Ind.App. 71, 180 N.E. 919; Butters v. Chicago, M., St. P. & P.R. Co., 214 Iowa, 700, 243 N.W. 597; Crosby et al. v. Great Northern R. Co., 187 Minn. 263, 245 N.W. 31; Rowe v. Northern Pac. R. Co., 52 Idaho, 649, 17 P.2d 352; Philadelphia & Reading Railway Co. v. Beadenkopf, 1 W.W. Harr. (31 Del.) 247, 114 A. 62, 15 A.L.R. 894; Nadasky v. Public Service R. Co., 97 N.J.Law, 400, 117 A. 478; Morris v. Atlantic City R. Co., 100 N.J.Law, 328, 126 A. 295; McGlauflin v. Boston & M.R.R., 230 Mass. 431, 119 N.E. 955, L.R.A.1918E, 790; Orton v. Pennsylvania R. Co. (C.C.A.) 7 F. (2d) 36; Sisson v. Southern Ry. Co., 62 App. D.C. 356, 68 F. (2d) 403; Weston v. Southern R. Co., 194 N.C. 210, 139 S.E. 237; Texas & N.O.R. Co. v. Adams (Tex.Civ.App.) 27 S.W.2d 331.

The instant case, however, involves the question of negligence of a flagman or watchmen stationed at the crossing.

Section 5988 of the Birmingham City Code reads: "It shall be the duty of flagmen and watchmen stationed at crossings of streets over railroads, whether there stationed voluntarily or pursuant to law, to remain at all times in full view of persons approaching said crossings, either on foot or in vehicles, and to promptly signal such persons to pass over if they can safely do so, or to stop if a train, locomotive or car is approaching too closely to admit of safe passage."

The flagman stationed at this crossing was using light signals by lantern. When the train moved on the crossing he left his position for giving signals, set his lantern down by the flagman's shanty near and south of the railroad track and east of the street, and gave no signal to the approaching fire truck.

The text of Corpus Juris reads: ...