Southern Ry. Co. v. Irvin

• Decision Date: 21 January 1915
• Docket Number: 906
• Parties: SOUTHERN RY. CO. et al. v. IRVIN.
• Court: Alabama Supreme Court

68 So. 139

191 Ala. 622

SOUTHERN RY. CO. et al. v. IRVIN.

No. 906

Supreme Court of Alabama

January 21, 1915

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by Mrs. M.E. Irvin, as administratrix, against the Southern Railway Company and another. Judgment for plaintiff, and defendant railway appeals. Reversed and remanded.

Stokely Scrivner & Dominick, of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

McCLELLAN J.

This is an action for damages, against the appellant and its engineer, for wrongfully causing the death of plaintiff's (appellee's) intestate, C.O. Greer. The evidence in the case shows, without conflict, that intestate was killed by a train of the defendant (appellant) between 6:30 and 7 a.m. of the morning of August 9, 1913; that he was not seen approaching or upon the track, by either of the defendant's employés on the engine until the rapidly moving train was so close to Greer that no human power could have averted the fatal impact; and that the tragedy occurred at a path crossing of the railway, which was used, at the most, by from 175 to 200 people a day. From the hour of the day and season it must have been good daylight at the time of the occurrence. The only error assigned and urged on this review is based upon the refusal to the defendant of the general affirmative charge; and this on the theory that the intestate was guilty of proximately contributory negligence barring a recovery for his death, in thrusting himself within the dangerous sweep of the engine.

Unless excused from stopping, looking, and listening by reason of some circumstance that would have rendered the taking of those precautions before going dangerously near to or upon a railway track entirely vain for the purpose the law intends in their exaction (Central of Georgia Ry. Co. v. Hyatt, 151 Ala. 355, 43 So. 867, and others in its line), it is the duty of the person intending to cross a railway 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 highly important information to the traveler and operate as the precaution the most ordinary prudence, in such circumstances, suggests; and the duty, unless excused as indicated, is continuing at least to the extent of excluding the injection of an element of danger into the situation between the time he last stopped, looked, and listened and the time he enters the zone of danger a moving train would create. Central of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Bason v. A.G.S.R.R. Co., 179 Ala. 299, 60 So. 922; Central of Ga. Ry. Co. v. Barnett, 151 Ala. 407, 44 So. 392.

There can be no doubt, under the evidence in this record, that, had Greer observed the duty of precaution the law laid on him, he would not have so exposed himself as to be stricken by the train that took his life. His companion, who was walking a few feet ahead of...