Southern Ry. Co. v. Crawford

• Decision Date: 16 December 1909
• Parties: SOUTHERN RY. CO. v. CRAWFORD.
• Court: Alabama Supreme Court

51 So. 340

164 Ala. 178

SOUTHERN RY. CO. v. CRAWFORD.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Madison County; D. W. Speake, Judge.

Action by W. B. Crawford against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Paul Speake, for appellant.

Walker & Spragins, for appellee.

SAYRE J.

Appellee sued for injuries to his person and property sustained by collision with an engine at a public road crossing. Count 1 alleges that the defendant by its servants negligently ran an engine towards the pike along which plaintiff was driving thereby causing plaintiff's team to become frightened and run across the track in front of the engine, where it was struck, with the result complained of. It has become too well established by repeated decisions to need further discussion that, where the gravamen of the complaint is the alleged misfeasance or nonfeasance of another, it is not necessary to define the quo modo of the negligence; the reasonable theory being that the defendant is best informed as to the particulars of his own dereliction. L. & N. R. R. Co. v Marbury. 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233 26 So. 349.

Count 4 differs from count 1 only in that it qualifies the allegation that the "defendant negligently ran an engine" by the additional averment that the engine was run "at a rapid rate of speed." It is not to be declared defective under the rule that the sufficiency of a complaint, in an action for personal injuries, which undertakes to define the particular negligence which caused the injury, must be tested by the special allegations in that respect. In other words, the allegation that the train was run at a rapid rate of speed is not put in apposition to a general charge of negligence. Rather the act particularly alleged to have been done is characterized generally as having been negligently done; this characterization supplying every element necessary to make the rapid running of a train negligent. Thus, to illustrate from our adjudicated cases, it has been held that the mere allegation that a passenger is injured by the sudden jerk of a car does not show actionable negligence. Something must be alleged in addition. Negligence in such a case depends upon whether there are persons in such a position that a sudden start would probably cause injury, and the duty to know that fact. Mobile L. & R. Co. v. Bell, 153 Ala. 90, 45 So. 56. But in H. A. & B. R. R. Co. v. Miller, 120 Ala. 535, 24 So. 955, it was held that the averment of a count that "the engineer of said engine negligently caused or allowed said car and engine to be suddenly and violently shocked" sufficiently alleged a cause of action. There are conditions under which it may constitute negligence to maintain a rapid rate of speed in the movement of a railroad train; and those conditions are supplied in the count by the averment that defendant's train was negligently moved at a rapid rate of speed. The count was unobjectionable under our system of pleading.

Count 2 does not charge that the operation of the engine immediately at the crossing was unusual or in any respect negligent. The negligence upon which the count goes is to be inferred from the failure of the engineer to blow the whistle or ring the bell at least one-fourth of a mile before reaching the pike, "in consequence of which failure," the count continues, "plaintiff approached the crossing without warning of the danger." This count, in common with the others, alleges that the plaintiff's team became frightened and ran upon the track in front of the engine. The duty to blow the whistle or ring the bell before reaching a public road crossing is imposed by statute, and it must be conceded that a mere failure constitutes negligence. Code 1907, § 5473; Code 1896, § 3440. But, in order for negligence to confer a right of action, it must be the efficient proximate cause of injury. The statute (Code 1907,§ 5476; Code 1896, § 3443) makes railroad companies liable for all damage done to persons, or to stock or other property, resulting from a failure to comply with the requirements of the three preceding sections, and places the burden upon them to show compliance. There can be no doubt that the object in requiring the engineer to blow the whistle or ring the bell is to put the traveler on his guard. In Stanton v. L. & N. R. R. Co., 91 Ala. 386, 8 So. 799, it was said that "it is the duty of trains, nearing a public crossing, to make such signals to warn persons approaching the track, that they may stop at a safe distance." It must be conceded, however, that the observation had no particular relevancy to any question presented by that case. It has been held by other courts having occasion to consider cases of the sort that statutes similar to ours are intended, among other things, to provide against the hazards of damage by frightening teams traveling along a highway towards a crossing by enabling their drivers to place them in such positions as will best guard against such injuries. It is held that the statutory signals enable travelers along the highway to take precaution against the danger of fright to be caused by the rush of the train immediately at the crossing. People v. N.Y. C. R. R. Co., 25 Barb. (N. Y.) 199; Norton v. Eastern R. R. Co., 113 Mass. 366; Ransom v. Chicago, etc., R. R. Co., 62 Wis. 178, 22 N.W. 147, 51 Am. Rep. 718; Mo. Pac. Ry. Co. v. Johnson, 44 Kan. 660, 24 P. 1116. But the further conclusion is that the statutes impose no duty to give warning to those who do not intend to use the crossing. L. E. & St. L. R. R. Co. v. Lee, 47 Ill.App. 384; E. T. V. & G. R. R. Co. v. Feathers, 10 Lea (Tenn.) 103; Reynolds v. Great Northern Ry., 69 F. 808, 16 C. C. A. 435, 29 L. R. A. 695. In Southern

Railway v. Williams, 143 Ala. 212, 38 So. 1013, it was argued that section 3441 of the Code of 1896, imposing certain duties upon engineers and conductors where the tracks of two railroads cross each other at grade, was intended for the protection of trains in the use...