Southern Ry. Co. v. Stewart

• Decision Date: 21 December 1912
• Citation: 179 Ala. 304,60 So. 927
• Parties: SOUTHERN RY. CO. v. STEWART.
• Court: Alabama Supreme Court

60 So. 927

179 Ala. 304

SOUTHERN RY. CO. v. STEWART.

Supreme Court of Alabama

December 21, 1912

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by Adelaide E. Stewart against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Dowdell C.J., dissenting.

Bilbro & Moody, of Scottsboro, for appellant.

Lawrence E. Brown, of Scottsboro, for appellee.

SOMERVILLE J.

This case is before us on appeal for the third time. Southern Ry. Co. v. Stewart, Adm'x, 153 Ala. 133, 45 So. 51; s. c., 164 Ala. 171, 51 So. 324.

On the third trial the case went to the jury on a single count--the sixth--which is as follows: "The defendant on or about April 30, 1905, was engaged in operating a railroad in this county and running trains thereon for the transportation of passengers and freight; that near Fackler, in this county said railroad crossed a road which was at the time and had been for a number of years prior thereto used by the public in crossing said railroad; that on or about said date plaintiff's intestate was killed by one of defendant's trains then and there being operated by the agents or servants of the defendant on said railroad within 50 or 60 feet of said road crossing. And plaintiff avers that the place where plaintiff's intestate was killed, and up to the time he was killed, had been constantly used by the public in traveling along said railroad and crossing the same at said road crossing; that this travel was so frequent and in such numbers of people that the agents or servants of the defendant operating said train knew at the time said train was run at said place persons were likely then and there to be in a position exposed to peril from approaching trains on or crossing said railroad; that, knowing this, the agents or servants of defendant in charge of said train, in wanton disregard of the probable consequences of injury to persons likely to be on the track of said railroad at said time and place, wantonly ran said train at a high and dangerous rate of speed at said time and place without keeping a lookout without any signal of approach, in consequence of which wanton conduct the said agent or servant ran said train on plaintiff's intestate and killed him." This count was evidently treated by the trial court as a wanton count. Defendant's demurrers challenge the sufficiency of its averments to show any duty resting upon defendant to keep a lookout for plaintiff's intestate. The trial court overruled these demurrers, and one important point presented for our decision is whether or not a railroad company in the ordinary operation of its trains in the open country is required to keep a lookout for persons using its track as a passageway for their private convenience, where such use is customary with the people living in the neighborhood, and of such frequency that some one is likely to be on the track at the time its trains are passing, all of which is known to the railroad's servants in charge of its trains.

We have numerous decisions dealing more or less directly with the question stated, and, in view of the conflicting dicta to be found in some of the opinions, we deem it advisable to review the cases and to restate the principles that seem to be clearly settled.

(1) Railroad tracks are not public highways for general travel. They are private property, and no one can claim the right to be or remain upon them as a mere legal right. Tanner's Ex'r v. L. &. N. R. R. Co., 60 Ala. 621, 635, 637.

(2) Where one walks on the track or right of way of a railroad company without invitation or license, he is a trespasser, and assumes the peril of the position in which he has voluntarily placed himself. M. & C. R. R. Co. v. Womack, 84 Ala. 149, 4 So. 618; Ala., etc., Ry. Co. v. Godfrey, 156 Ala. 202, 47 So. 185, 130 Am. St. Rep. 76. The railroad owes him no duty except the exercise of reasonable care and diligence to avoid injuring him as soon as his peril becomes apparent. Haley v. K. C., etc., R. R. Co., 113 Ala. 640, 649, 21 So. 357. Such trespasser can recover only for wanton or intentional injury by the railroad's servants; and this wantonness, or intention to injure, can never be imputed to him unless they actually know--not merely ought to know--the perilous position of the person on the track, and, with such knowledge, fail to resort to every reasonable effort to avert the injury. Glass v. M. & C. R. R. Co., 94 Ala. 581, 10 So. 215.

(3) In Nave v. A. G. S. R. R. Co., 96 Ala, 264, 11 So. 391, the rule last stated is said to be qualified by the rule stated in Ga. Pac. Ry. Co. v. Lee, 92 Ala. 271, 9 So. 230: "To run a train at a high rate of speed, and without signals of approach, at a point 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 or 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 great speed without warning, so as to impute to them reckless indifference in respect thereto, as would render their 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." It would seem that this was a misconception of the Lee Case, for that case was dealing with an injury at a public road crossing, and the language quoted was applicable only to crossings, where persons might rightfully be, and pointed the distinction between simple and wanton negligence with respect to such places, where there was a clear legal duty to persons lawfully using the crossing. This apparent misconception of the language of the Lee Case as being applicable to trespassers walking along the track or right of way has been consistently perpetuated in the later decisions of the court; and the doctrines above quoted from the Womack and Glass Cases must now be regarded as qualified by these decisions. Haley v. Kansas City, etc., R. R. Co., 113 Ala. 640, 21 So. 357; A. G. S. R. R. Co. v. Guest, 136 Ala. 348, 34 So. 968; s. c., 144 Ala. 373, 39 So. 654; Northern Ala. Ry. Co. v. Counts, 166 Ala. 550, 51 So. 938; Birmingham Southern Ry. Co. v. Fox, 167 Ala. 281, 52 So. 889; B. R. L. & P. Co. v. Jones, 153 Ala. 157, 45 So. 177. The principle of these cases is that where a person is injured at a point on the railroad track or the right of way adjacent thereto, in or very near a populous city, town, or village, where the company has by silent acquiescence permitted the free use of its way by the public and this use is open, notorious, habitual, and long continued by a large or considerable number of people, so that at the time and place of the injury the presence of some one was likely and reasonably to be expected by the company's servants, then evidence of these facts is relevant, and may be sufficient, to show that the failure of the servants in charge of a train or car to keep a lookout, or to give warning signals of its approach, was wanton negligence, for the injurious consequences of which even a trespasser may maintain an action. Of course, the notoriety and duration of the public use are important only as tending to charge the company's servants with knowledge of the conditions specified, in the absence of direct proof that they have actual knowledge. The rule on this subject is stated in M. & C. R. R. Co. v. Martin, 117 Ala. 367, 385, 23 So. 231.

The...