Southern Ry. Co. v. Summers

• Decision Date: 09 April 1936
• Docket Number: 8 Div. 716
• Citation: 232 Ala. 417,168 So. 179
• Parties: SOUTHERN RY. CO. v. SUMMERS.
• Court: Alabama Supreme Court

168 So. 179

232 Ala. 417

SOUTHERN RY. CO. v. SUMMERS.

8 Div. 716

Supreme Court of Alabama

April 9, 1936

Rehearing Denied May 28, 1936

Appeal from Circuit Court, Colbert County; Geo. E. Barnett, Special Judge.

Action for personal injury and property damage by J.M. Summers against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

W.H Mitchell, of Florence, and Stokely, Scrivner, Dominick &amp Smith, of Birmingham, for appellant.

Fred S Parnell and Simpson & Simpson, all of Florence, for appellee.

ANDERSON Chief Justice.

As we understand, the trial court eliminated wantonness and subsequent negligence on the part of the defendant, confining the plaintiff's right to recover for simple, initial negligence, based on a conflict in the evidence as to whether or not the enginemen gave the required signals before reaching the crossing where the plaintiff was injured. This being the case, the defendant's plea of contributory negligence was a good defense.

So the question is whether or not the defendant's said plea of contributory negligence was established by the evidence beyond dispute. And, if it was, the defendant was due the general charge.

In dealing with the duty of persons before going upon or attempting to cross a railroad track, this court has laid down and repeatedly enunciated the following rule:

"That it is the duty of a person approaching the track of a railway for the purpose of crossing it to stop, and to look, and to listen, if need be--that is, if the exercise of the sense of sight does not suffice to fully disclose the situation for approaching trains--and that the omission of this duty, followed by injury in collision with a train, locomotive, or car while attempting thus heedlessly to cross over the track, is as matter of law negligence on the part of the traveler so contributing to the result as to defeat his action, counting on the injury as having been produced by the simple negligence of the railway company or its employees, are propositions of such universal acceptance, of such frequent declaration by this court, and of such obvious soundness that we shall neither discuss them nor cite authorities in support of them. It is equally clear on principle and authority that this duty must be performed at such time and place with reference to the particular situation in each case as will enable the traveler to accomplish the purpose the law has in view in its imposition upon him. He must stop so near to the track, and his survey by sight and sound must so immediately precede his effort to cross over it, as to preclude the injection of an element of danger from approaching trains into the situation between the time he stopped, looked, and listened and his attempt to proceed across the track. If he stops so far from the railway as that a train which could not be seen from that point could and does reach the crossing by the time he has traversed the intervening distance and gotten on the track, he negligently contributes to the resulting collision and injury. And the same is true if, though he stop at the track, he lingers there after looking and listening, and delays crossing until a train not in sight or hearing when he stopped, looked, and listened has come meantime upon the scene and collides with him when he does attempt to cross." Central of Georgia Railway Company v. Barnett, 151 Ala. 407, 44 So. 392, 393; Central of Georgia Ry. Co. v. Foshee, 125 Ala. 199, 212, 27 So. 1006; Louisville & Nashville Railroad Co. v. Turner, 192 Ala.

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