Southern Ry. Co. v. Miller, 6 Div. 306.

• Court: Supreme Court of Alabama
• Writing for the Court: GARDNER, Justice.
• Citation: 147 So. 149,226 Ala. 366
• Docket Number: 6 Div. 306.
• Decision Date: 23 March 1933
• Parties: SOUTHERN RY. CO. v. MILLER.

147 So. 149

226 Ala. 366

SOUTHERN RY. CO.
v.
MILLER.

6 Div. 306.

Supreme Court of Alabama

March 23, 1933

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages by J. A. Miller against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals.

Reversed and remanded. [147 So. 150]

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

Taylor & Higgins, of Birmingham, for appellee.

GARDNER, Justice.

Plaintiff, a resident of the neighborhood and entirely familiar with the crossing, in disregard of the doctrine of "stop, look, and listen," ran his Buick car, at an estimated speed of ten or fifteen miles per hour, into the side of defendant's engine tank, and recovered a judgment for the damages sustained. There were no obstructions to impair his view, but the "visibility was not good," due to cloudy conditions following rain and failure of his windshield wiper to properly function. Manifestly there could be no recovery based upon any initial negligence of defendant. Ala. Great So. Rwy. Co. v. Durr, 222 Ala. 504, 133 So. 56; Central of Georgia Rwy. Co. v. Porter, 207 Ala. 417, 93 So. 394; Hines v. Cooper, 205 Ala. 70, 88 So. 133; Hines v. Champion, 204 Ala. 227, 85 So. 511; Louisville & Nashville R. R. Co. v. Rush, 208 Ala. 516, 94 So. 577; 52 Corpus Juris, 353, 354. "The law thus imposes a continuing duty to see that the way is clear before attempting to cross." Southern Rwy. Co. v. Randle, 221 Ala. 435, 128 So. 894, 897.

Plaintiff insists, however, a case of subsequent negligence is made by the proof, which must rest upon negligent conduct after the discovery of plaintiff's peril. Johnson v. Birmingham R., L. & P. Co., 149 Ala. 529, 43 So. 33.

The argument is that the engineer saw the peril and the signal of the brakeman, [147 So. 151] Allen, and failed to make proper efforts to avoid the collision. Undisputedly the engine moved only a few feet (five or six) after the impact. This would indicate the engineer heard the alarm of the brakeman and acted promptly. Whether he saw plaintiff previous to this is left to conjecture, as there is no testimony showing where he was looking at the time or indicating when he discovered, if he did so discover, that plaintiff would likely collide.

The case cited by plaintiff (Louisville & Nashville R. R. Co. v. Calvert, 172 Ala. 597, 55 So. 812) was made more explicit as to the facts in Bason v. Ala. Great So. Rwy. Co., 179 Ala. 299, 60 So. 922, 923, and as thus explained is found inapplicable to the facts of this case-a sufficient outline of which appears in the report of the case.

Plaintiff's counsel engage in some calculation to estimate the distance plaintiff's car was from the crossing when the brakeman discovered he was not likely to stop. St. L. & S.W. R. R. Co. v. Simpson, 286 U.S. 346, 52 S.Ct. 520, 521, 76 L.Ed. 1152. But it is plain the argument as to time rests upon a matter of seconds which are conjectural only, and the following observations of the United States Supreme Court in St. L. & S.W. R. R. Co. v. Simpson, supra, find application: "The negligence of the engineer was a continuing one, * * * for he was under a duty from the moment that he went out on the main track to return to a place of safety. The negligence of the conductor in failing to give warning was not separated by any considerable interval from the consequences to be averted, nor is there any satisfactory proof that warning, if given, would have been effective to avert them. The transaction from start to finish must have been a matter of seconds only. * * * Calculations so nice are unavailing to prove anything except the unity of the whole transaction. The several acts of negligence were too closely welded together in time as well as in quality to be viewed as independent." So here the duty of plaintiff to stop, look, and listen was a continuing one, which persisted to the moment of the collision, and under the circumstances shown may be said to correspond with the "primary duty" referred to in Davis v. Sorrell, 213 Ala. 191, 104 So. 397, following the decision in Davis v. Kennedy, 266 U.S. 147, 45 S.Ct. 33, 69 L.Ed. 212. See, also, Louisville & Nashville R. R. Co. v. Jacobson, 218 Ala. 384, 118 So. 565; Seaboard Air Line Rwy. Co. v. Johnson, 217 Ala. 251, 115 So. 168.

As to the duty devolving on the plaintiff to stop, look, and listen, the following from our case of Saxon v. Central of Georgia Rwy. Co., 192 Ala. 434, 68 So. 313, 314, is appropriate: "There was evidence tending to show that as the engine was being backed towards and partly across this public road crossing, in the town of Goodwater, which crossing was in constant use by the public, the whistle on defendant's engine was not blown, nor the bell rung, and this would appear as sufficient (the injury...