Southern Ry. Co. v. Smith

• Decision Date: 08 October 1931
• Docket Number: 6 Div. 637.
• Citation: 137 So. 398,223 Ala. 583
• Parties: SOUTHERN RY. CO. v. SMITH.
• Court: Alabama Supreme Court

137 So. 398

223 Ala. 583

SOUTHERN RY. CO. v. SMITH.

6 Div. 637.

Supreme Court of Alabama

October 8, 1931

Rehearing Denied Nov. 19, 1931.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Ida B. Smith, as administratrix of the estate of Edward H Smith, deceased, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Whether railway motorcar operator's failure to assign employee to keep lookout proximately caused collision with train held for jury.

The following charges were refused to defendant:

"17. The court charges the jury that the plaintiff's intestate was not excused from operating or causing to be operated the motor car upon which he was riding at the time of his death, under the protection of a flagman, with proper signals, because of any oral information you may find from the evidence he obtained from the defendant's operator at Cordova, Alabama."

"18. The court charges the jury that the plaintiff's intestate was not excused from operating or causing to be operated the motor car upon which he was riding at the time of his death, under the protection of a flagman, with proper signals, because of any oral information you may find from the evidence he obtained from the defendant's operator at Cordova, Alabama, as to the number or location of our trains on the defendant's railroad track."

"19. The court charges the jury that the plaintiff's intestate was not justified in relying upon any oral information he obtained from the defendant's operator at Cordova, Alabama, as to the number and location of trains on the defendant's railroad track, and this would be true whether the defendant's said operator represented to the plaintiff's intestate that such information came from the defendant's dispatcher, or not."

"27. The court charges the jury that any line up, whether oral or written, and whether from the operator or dispatcher, would not excuse the plaintiff's intestate from operating or causing to be operated the motor car upon which he was riding at the time, under the protection of a flagman."

"28. The court charges the jury that if they find from the evidence that plaintiff's intestate was not operating or causing to be operated the motor car upon which he was riding at the time he received the injuries from which he died, under the protection of a flagman, then the court further charges the jury that they cannot find for the plaintiff because of any negligence on the part of the defendant's operator, Stallworth."

"29. The court charges the jury that it was the duty of the plaintiff's intestate to operate or cause to be operated the motor car upon which he was riding at the time he received the injuries from which he died, under the protection of a flagman, and if they find from the evidence that he did not operate or cause to be operated, the said motor car under the protection of a flagman, then they cannot find in favor of the plaintiff in this case because of any negligence on the part of defendant's dispatcher, Truss."

"37. The court charges the jury that it was the duty of the plaintiff's intestate to comply with the defendant's rules and regulations then in force, governing the use and operation of motor cars upon defendant's railroad track, including the rule and regulation dated March 28th, 1929, and signed by J. H. Waters, Roadmaster, introduced in evidence in this case, and if you find from the evidence that the plaintiff's intestate, while operating or causing to be operated, a motor car upon defendant's railroad tracks, did not comply with the defendant's rules and regulations governing the use and operation of motor cars upon defendant's railroad tracks, including the said order of said J. H. Waters, Roadmaster, dated March 28th, 1929, then the court further charges the jury that the plaintiff's intestate assumed the risk of injury caused by collision of said motor car with defendant's train No. 664."

"44. The court charges the jury that if they believe the evidence, the defendant's operator, Stallworth, at Cordova, did not have any authority to give plaintiff's intestate any oral information as to number and location of trains west of America Junction."

"46. The court charges the jury that if they believe the evidence in this case, it was the duty of plaintiff's intestate to look out for trains upon defendant's railroad track, and that it was not the duty of defendant's employees to look out for plaintiff's intestate while he was riding upon the motor car on defendant's railroad track, and if they find from the evidence that plaintiff's intestate could by the observance of rules governing the use and operation of motor cars upon defendant's railroad track, have observed train 664, or ascertained its presence upon the track in time to have avoided coming in contact with it, then the court further charges the jury that the plaintiff in this assumed the risk of injury and death proximately caused by coming in contact with said train, and plaintiff cannot recover in this action."

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

Ewing, Trawick & Clark, of Birmingham, for appellee.

FOSTER J.

Plaintiff's intestate was the foreman of a bridge crew in the service of defendant engaged in interstate commerce. He was killed in a head-on collision between his motorcar and train No. 664, between stations Cordova and America Junction. The roadway between those stations was a "block," according to the system of defendant. America Junction was about five miles west of Cordova. The motorcar was traveling west from Cordova, train No. 664, east from America Junction, and the collision occurred nearly midway between them. There was a telegraph operator at each station. No. 664 was an engine operated as a train and so called, and was allowed by the operator at America Junction on orders from the dispatcher to follow train No. 62 into the block ten minutes later, both going east toward Cordova. Before leaving America Junction by train No. 62, the operator there had secured information from the Cordova operator that there was nothing in the block going west from there. This was about 1:46 or 1:48, whereupon train 62 started its course east in the block. At about 1:30 and before No. 62 was by America Junction, plaintiff's witness Stallworth, who was then the operator at Cordova, but who was discharged soon after the collision, testified that decedent came into his office at Cordova and asked him "to find out from the dispatcher if there were any trains between 62 and 58"; that he asked the dispatcher by telegraph if there would be any trains between 62 and 58, and he said there would be none; and that he communicated this information to decedent. They then discussed the question of whether 62 would reach Cordova by 2 p. m., so that if he left afterwards he could reach Parrish, his destination, before 58 reached there also going east behind 62. Deceased then ran his motorcar down the track to the end of the siding a mile or more, apparently to wait for 62 to come in, and then went on his course. At 1:56, ten minutes after 62 left America Junction going east, the operator at that station notified Stallworth at Cordova that 664 had entered the block, behind 62. Cordova station knew nothing of 664 until then, and the operator had not asked for clearance, but he permitted the entrance of 664 on orders of the dispatcher, which was permissible under the rules when there was another train in the same block going in the same direction, for the rules prohibited the operator at Cordova to permit a train going west until after 62 had passed, and he had received clearance from America Junction. So that the entrance of 664 into the block after 62 had gone in and before he had given Cordova a block clearance, and on orders of the dispatcher, was pursuant to the regulations. The motorcar of deceased proceeded west from the end of the switch, meeting 664, after 62 had gone by, and the collision occurred. As soon as the operator at Cordova learned of the approach of 664, he sent a telephone call, which automatically rang all the 'phone booths in the block, in order to stop decedent, or 664, if he could, but failed to get word to either of them. The dispatcher denied that Stallworth had asked him about trains running between Nos. 62 and 58. But testified that he knew about No. 664 and gave the order for it to leave America Junction at 1:56, and that if Stallworth had asked him the question he would have told him about No. 664. So that, as to whether such messages passed, the evidence was in sharp conflict.

But defendant claims that Stallworth had no authority to make the request as he did, nor give it thus to deceased, neither did deceased have authority to make a request, except for written information. And that deceased should have requested a "written line-up" for his information. The meaning of this is thus explained by Stallworth:

"When a written line up was requested that would be in writing and signed by the chief dispatcher. That would be telegraphed to the operator with the dispatcher's name also telegraphed. When there is a message for a written line up, that actual message would come from the dispatcher; it would come telegraphed and I would copy it down like the dispatcher sent it. The message would also have affixed to it the signature of the chief dispatcher. He would telegraph his signature. It would have his name to it, and I would put it there of course. I would write down what the dispatcher told me, including the chief dispatcher's name, and in case of a written line up I would give that to Mr. Smith. I didn't do that on this occasion, and Mr. Smith didn't request any such line-up. As a matter of

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