Southern Ry. Co. v. Diffley

• Decision Date: 01 March 1934
• Docket Number: 6 Div. 436.
• Citation: 228 Ala. 490,153 So. 746
• Parties: SOUTHERN RY. CO. v. DIFFLEY.
• Court: Alabama Supreme Court

153 So. 746

228 Ala. 490

SOUTHERN RY. CO. v. DIFFLEY.

6 Div. 436.

Supreme Court of Alabama

March 1, 1934

Rehearing Denied April 12, 1934.

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

Action by Mary A. Diffley, as executrix of the estate of Honora Vollmer, deceased, against the Southern Railway Company under Homicide Act (Code 1923, § 5696). From a judgment for plaintiff, defendant appeals.

Affirmed.

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

John W Altman and London, Yancey, Smith & Windham, all of Birmingham, for appellee.

BROWN Justice.

Some of the special charges requested by the defendant and refused by the court assert that, if the jury were reasonably satisfied from the evidence that signals of the train's approach were given as required by the statute (Code 1923, § 9952), the jury would not be warranted in finding the defendant guilty of wantonness, although they were also reasonably satisfied that the train approached the crossing at a high rate of speed. Others assert a like proposition as related to the stationary signal maintained at the crossing.

Under the assignments of error predicated on the refusal of these charges, appellant insists that the absence of such warning was an element of the burden of proof resting on the plaintiff under the wanton count.

It has been consistently ruled here that mere proof that a train approached and passed a public crossing at a high rate of speed does not sustain a charge of wantonness; and likewise, in certain circumstances, as where the plaintiff relies on the character of the crossing, as a populous crossing, and its frequent use at or about the time of the injury to a member of the public in its use, and knowledge of such conditions as importing notice to the trainmen that some one is, at the time of the train's approach, on or near the crossing in a place of peril, it has been consistently held that the absence of signals of approach enter into and constitute an element of wantonness.

The full import of that doctrine is thus clearly stated in Ala. Great Southern Ry. Co. v. Guest, as Adm'r, 144 Ala. 373, 375, 39 So. 654, 657: "To run a train at a high rate of speed and without signals of approach, where the trainmen have reason to believe there are persons in exposed positions on the track, as over an unguarded crossing in a populous district of a city, or where the public are wont to pass on the track with such frequency and in such numbers-facts known to those in charge of the train-as that they will be held to a knowledge of the probable consequences of maintaining greater speed without warning, so as to impute to them reckless indifference in respect thereto, would render the employer liable for injuries resulting therefrom, notwithstanding there was negligence on the part of those injured and no fault on the part of the servants after seeing the danger. Ga. Pac. R. R. Co. v. Lee, 92 Ala. 262, 9 So. 230; Highland A. & B. R. R. Co. v. Robbins, 124 Ala. 113, 27 So. 422, 82 Am. St. Rep. 153." (Italics supplied.)

The cases cited by appellant do not hold that the failure to give a signal of the train's approach is an essential element of wantonness. In Northern Alabama Ry. Co. v. McGough, 209 Ala. 435, 96 So. 569, so far as appears, there was no evidence showing, or tending to show, that the enginemen had actual notice that plaintiff's intestate was in a position of peril in time to avert the injury, either by stopping the train or checking its speed. That case applied the doctrine above stated.

In Southern Ry. Co. v. Randle, 221 Ala. 435, 438, 128 So. 894, 897, "the evidence as to the use of the crossing is [was] not sufficient to put the engineer on notice that some one would probably be on the crossing, and it is [was] not shown that he did not do all that could be required, after discovering the...