Southern Ry. Co. v. Carter

• Decision Date: 26 September 1963
• Docket Number: 8 Div. 105
• Citation: 276 Ala. 218,160 So.2d 628
• Parties: SOUTHERN RAILWAY COMPANY et al. v. Wallace CARTER, Adm'r.
• Court: Alabama Supreme Court

Page 628

160 So.2d 628

276 Ala. 218

SOUTHERN RAILWAY COMPANY et al. v. Wallace CARTER, Adm'r.

8 Div. 105.

Supreme Court of Alabama.

Sept. 26, 1963.

Rehearing Denied Feb. 6, 1964.

Bell, Morring, Richardson & Cleary, Huntsville, for appellants.

Smith, Johnston & Walker, Huntsville, for appellee.

Given charge for plaintiff is as follows:

'104. I charge you gentlemen that the distance plaintiff should stop from the track in order to comply with his duty of stopping, looking and listening before going upon this crossing is not a set number of feet or any other arbitrary rule, but should be dependent upon the facts in this particular case--and if under the circumstances of this case you find from the evidence that Wallace Carter acted as an ordinary prudent man would have acted under similar circumstances, then the Plaintiff cannot be guilty of any contributory negligence.'

The following charge was refused to defendants:

'17. I charge you, gentlemen of the jury, that, if you believe the evidence, Wallace Carter is guilty of negligence which was a proximate cause of the accident and your verdict must be for the defendants under Counts One and Five of the plaintiff's complaint as amended.'

PER CURIAM.

The appellee recovered judgment in the circuit court of Madison County against appellants for $31,000.00 on count one of the complaint. Judgment was entered following a jury verdict.

Count one charged the defendants with negligence in the operation of a train and that such negligence proximately caused the death of appellee's intestate when the engine of defendant corporation, in charge of the defendant Peters, who was the engineer, at a public crossing in a rural area, came in contact with an automobile driven by the plaintiff, Wallace Carter, in which the intestate was a passenger.

Sixteen fact and expert witnesses were examined in the trial of the case, covering 157 pages of transcript paper, while 65 enlarged photographs, two aerial photographs, and a larger topographical drawing were introduced and admitted in evidence for consideration of the jury. We have read the text of all the testimony and observed the pictorial evidence in aid of the testimony.

While a considerable portion of the testimony is in dispute, some portions were not contested. A fair statement of the essential facts and the evidence adduced at the trial, pertinent to the issues argued in the parties' briefs on file, is as follows:

The plaintiff, Wallace Carter, with three of his children riding with him in an automobile on a clear day, Carter doing the driving, turned north off the main paved highway between Gurley and Huntsville, which runs east and west parallel with the tracks of the defendant corporation. This road, running north, intersected the railroad tracks of defendant corporation and was in public use at the time, lightly traveled, so that the intersection was a public crossing within the purview of the laws of Alabama. The crossing was in a rural area about one mile west of the community of Gurley.

When the driver's seat of the automobile was about even with an old fence that had an opening 30 or 31 feet from the tracks of the defendant, Mr. Carter stopped the car and looked and listened for the approach of a train, but not hearing one, proceeded in low gear toward the crossing with which he was familiar.

The tracks at the crossing were moderately elevated above the point where Mr. Carter stopped. The immediate approach on the south side of the tracks was made of a bituminous substance while the remainder of the road between the highway and the crossing was covered with rocks or gravel.

Mr. Carter testified that as he approached the crossing before, at the time, and after stopping, he did not hear any warning signals or noise, and that when he was near the rails, he looked to his left (west) for a train. Immediately west of the crossing were two rocks, forming a rock cut, that obstructed his view to his left.

Having good ears and eyes, but not hearing nor seeing any trial approaching from the west, and not having seen or heard one from the east when he stopped, he proceeded onto the crossing; as the front wheels of his automobile went just over the south rail of the track, one of his children remarked that a train was approaching from the east or words to that effect. Seeing the train, he threw his car into reverse gear, but was unable to extricate his car from its perilous position in time to avoid the train.

The impact of the left sector of the front engine (the train was being propelled by two diesel engines working in unison) struck the front right sector of the automobile, whereby proximately from the impact two of plaintiff's small children, riding in the front seat, were killed.

It further appears from the evidence that the fireman of the train at the time of the impact and a short while before was making a routine inspection of the second diesel engine.

Where the plaintiff stopped to make a visual survey of the railroad track to his right and to listen for a train, there were some grass and weeds that partially obscured his view of the track. He testified he could see a 'piece', but not far up the track. As the road approached the crossing, this growth receded in height permitting a better view of the track toward the east.

It further appears from the evidence that a civil engineer, with his transit in the center of the track looking east, the direction from which the train came, could see in a direct line down the track for a distance of approximately 600 feet, but if the transit had been set nearer the south rail of the railroad the direct line would have left the track a short distance further east. He also testified that a whistle board was located 694 feet east of the crossing.

At the end of this direct line, where it left the track, the railroad curved in a northeasterly direction. As we view the evidence, the crossing was on a very slight curve but not on a pronounced are of the curve looking east.

The defendant, C. C. Peters, the locomotive engineer, testified, in answer to interrogatories that were propounded to him and the answers introduced by the plaintiff, that as the train approached the crossing he neither rang the bell nor blew the whistle, nor gave any warning signal, although he knew the crossing was there. He did not specifically say that he knew about a whistle board 694 feet east of the crossing, but he said there were several whistle boards along the route.

He further testified in his answers that while approaching the crossing he was at all times looking straight ahead, observing the track for obstructions but saw none, and that he did not see plaintiff's automobile near or on the track. His view of the crossing was cut off about 150 or 200 yards before reaching it. He was on the right side of the engine. When he was put on the stand by his attorney to testify, he said that he could see the crossing for a distance of 1000 to 1500 feet before reaching it.

In his depositions, the engineer, Mr. Peters, testified that when within 2000 feet of the crossing, in his judgment, the speed of the train was 35 to 40 miles per hour; within 1000 feet, 40 to 45 miles per hour; and 500 feet between 45 and 50 miles per hour. On oral examination he testified the speed was 50 miles per hour when the collision occurred.

A witness for plaintiff testified that he was traveling west on the highway parallel with the tracks and that, in his judgment, his automobile was running at a speed of 55 to 60 miles per hour and that the train passed him.

Defendants filed a plea as follows:

'Come now the defendants and for answer to plaintiff's complaint and to each and every count thereof, separately and severally, plead the general issue in short with consent of the plaintiff to put in evidence any matter in defense of this action which would be admissible if well pleaded, to have effect as if so pleaded.'

The above plea included a plea that the plaintiff, Wallace Carter, was guilty of negligence that proximately in some degree contributed to the death of his child and intestate.

This court held in the case of Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88(4), as follows:

'We cannot adhere to the theory that a father by electing to be administrator, or causing another to be administrator, and suing as such, rather than as the parent under section 119, supra, his contributory negligence is no defense, whereas it would be a defense in a suit by the parent personally, when the damages recoverable by such administrator would belong to such parent solely to the same extent as if the suit were by him personally.'

Appellants, in their briefs, contend that the trial court erred in not giving their written requests for the affirmative charge as to each defendant. This failure was also raised in the motion for a new trial and the merit of that ground is likewise argued in the briefs.

In their briefs appellants contend and argue that the plaintiff, Wallace Carter, was guilty of negligence which, as a matter of law, proximately contributed to the death of his minor child and for whose death damages were claimed under the Homicide Statute, Title 7, Section 123, Code of Alabama, 1940, and awarded.

We have held in numerous cases that contributory negligence is a question for the court only when all reasonable men must draw the same conclusion, and for the jury when reasonable minds may fairly differ. Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276. See also Alabama Digest, Vol. 15, Negligence, k136(9).

Well-established principles of law touching the duty of a person in crossing a railtoad track at a public crossing appear in the decisions of this court as follows:

Railroad track itself is a warning of danger. Louisville & Nashville R. Co. v. Bailey, 245 Ala. 178, 16 So.2d 167.

If a traveler saw the approach of a train in time to avoid an accident, he cannot predicate recovery on failure to give warning...