Southern Ry. Co. v. Flynt

• Decision Date: 15 May 1919
• Docket Number: 7 Div. 948
• Citation: 203 Ala. 65,82 So. 25
• Parties: SOUTHERN RY. CO. v. FLYNT.
• Court: Alabama Supreme Court

82 So. 25

203 Ala. 65

SOUTHERN RY. CO. v. FLYNT.

7 Div. 948

Supreme Court of Alabama

May 15, 1919

Appeal from Circuit Court, Etowah County; J.E. Blackwood, Judge.

Suit by W.F. Flynt against the Southern Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

Goodhue & Brindley, of Gadsden, for appellant.

Culli &amp Martin, of Gadsden, for appellee.

SOMERVILLE J.

The complaint charges that the defendant corporation "owns operates, or controls" the railroad track to whose alleged defective condition at a public road crossing the plaintiff's injury is attributed.

The theory of the demurrer is that the alternative averment "or controls," is in itself insufficient to show such a relation of this defendant to this railroad track as to impose upon defendant the duty of keeping the crossing in repair. "Control" is a synonym of "management." Gray v. Parke, 162 Mass. 582, 39 N.E 191; Youngworth v. Jewell, 15 Nev. 45, 48; B.R., L. & P. Co. v. Milbrat, 78 So. 224, 228; 2 W. & P. 1549. According to Worcester's Dictionary, "control" means "to have power over; to govern; to direct; to manage." The word is evidently thus used in the context here exhibited, and, giving to it its ordinary and appropriate meaning, the complaint is not subject to the criticism of the demurrer. Moreover, the question, as here presented, is purely technical, for there was no question whatever on the trial of the case as to defendant's ownership and responsibility.

"If a railroad company constructs its road across a public road, or highway, the duty devolves upon it to put and keep the approaches and crossing in proper repair for the use of the traveling public. This duty will be sufficiently discharged if the highway is maintained in a reasonably safe and convenient condition, so as not to materially impair its usefulness, or interfere with its safe enjoyment by travelers, who exercise ordinary care and prudence for their own safety in using it." Patterson v. S. & N.A.R.R. Co., 89 Ala. 318, 7 So. 437; N., C. & St. L. Ry. Co. v. Ragan, 167 Ala. 277, 52 So. 522.

Some of the testimony tended to show that, accompanying a change in the level of its roadbed at the crossing, defendant left the rails exposed to a height of five or six inches above the level of the ground, without any filing between them, and that it was in this condition when plaintiff was thrown from the automobile as it passed over the crossing. If this testimony was believed, the jury could properly find that the crossing was not in a reasonably safe and convenient condition...