Stringer v. Alabama Midland R. Co.

• Decision Date: 28 April 1893
• Citation: 13 So. 75,99 Ala. 397
• Parties: STRINGER v. ALABAMA MIDLAND R. CO. ET AL.
• Court: Alabama Supreme Court

13 So. 75

99 Ala. 397

STRINGER v. ALABAMA MIDLAND R. CO. ET AL.

Supreme Court of Alabama

April 28, 1893

Appeal from circuit court, Talladega county; Leroy F. Box, Judge.

Action by E. G. Stringer against the Alabama Midland Railroad Company and the Louisville & Nashville Railroad Company for personal injuries caused by a locomotive of defendants. From a judgment for defendants, plaintiff appeals. Reversed.

The assignments of error only go to the ruling of the court upon the charges given and refused. Upon the introduction of all the evidence the court, in its oral charge, among other things, instructed the jury as follows: "The agents who were running the train-the engineer and fireman-were not bound to keep a lookout for trespassers or persons upon the track at that place." The plaintiff excepted to the giving of this part of the oral charge, and also separately excepted to the court's giving each of the following written charges, which were requested by the defendants: (1) "The court charges the jury that there is no evidence in this case showing that the injuries to the plaintiff were caused by the gross negligence of the defendant or its agents." (2) "The court charges the jury that there is no evidence in this case to show that the injuries to plaintiff were caused by the defendant, or its agents wantonly, recklessly, or intentionally." (3) "The court charges the jury that although they may find from the evidence that Coffee street was a public street in the city of Talladega, and was frequently used by travelers on foot and occasionally used by travelers in vehicles, and that this fact was known to the defendant's engineer and fireman in charge of the engine at the time the plaintiff's injuries were received, still the defendant would not be guilty of gross negligence, even though its engineer was running at an undue rate of speed, or faster than required by the ordinance of the city of Talladega, and without the statutory signals." (4) "The mere fact that the defendant's train was being run through Coffee street, in the city of Talladega, over which defendant's track was laid by permission from the city, at a faster rate of speed than required by the ordinance of the city of Talladega, and without giving statutory signals, is not sufficient to show gross negligence on the part of the defendant. The undisputed evidence in the case sufficiently shows that at the time the injuries were received the engineer and fireman in charge of the defendant's train did not, and could not, see plaintiff on the track; the view of him being obscured by the steam from the steam drill which was operating near the track." (5) "The mere fact that defendant's train was being run through Coffee street, in the city of Talladega, over which defendant's track was laid by permission from the city, at a faster rate of speed than required by the ordinance of the city of Talladega, and without giving statutory signals, is not sufficient to show gross negligence on the part of the defendant. The undisputed evidence in the case sufficiently shows that at the time the injuries were received the engineer and fireman in charge of the defendant's train did not, and could not, see plaintiff on the track; the view of him being obscured by the steam from the steam drill which was operating near the track." (6) "The court charges the jury that although the defendant's railroad is constructed through Coffee street, which is a public street in the city of Talladega, by permission from the city, that the plaintiff was trespassing, and unlawfully on said track, if at the time he was injured he was standing on the track, or walking up the track, with his back towards the engine. The undisputed evidence in this case shows that there was sufficient room for plaintiff to walk in the street, without walking up defendant's track; that the railroad track is a known place of danger; and it was inexcusable in plaintiff, if he unnecessarily walked up defendant's track, returning to his place of business, or if he was standing upon the track looking at the operation of the steam drill, or for whatever purpose. If the evidence in this case shows to your satisfaction that the plaintiff, at the time he was injured was walking up the defendant's track, with his back or side to the approaching engine, he was guilty of contributory negligence, and cannot recover." (7) "The court charges the jury that notwithstanding they may believe from the evidence that Coffee street was a frequently traveled street in the city of Talladega, used frequently by foot passengers, but not by travelers in vehicles, and notwithstanding these facts may have been known to the defendant and its employes, this is not sufficient to charge the defendant with actual notice that there were persons, or any person, on the track at the time the accident happened. The circumstances of this case are not sufficient to charge defendant with notice, or with what is equivalent to notice that there were any persons on the track. The fact that the street is frequently used by passengers on foot, which is known to defendant's employes, and that they occasionally cross and recross the track, is not equivalent to actual notice, under the circumstances of this case, to defendant, or its agents, that there were persons, or any person, on the track at the time the accident happened." (8) "The court charges the jury that if you believe from the evidence that the engine on the defendant's track was being operated at a speed not exceeding eight miles per hour, and that the bell was being rung from the time the engine left West street until it passed the platform where the accident happened, your verdict must be for the defendant." (9) "The court charges the jury that they will consider all the testimony, and will endeavor to arrive at the truth of the matter, as revealed to them from the mouths of the witnesses, or by the physical facts in the case, and by all the circumstances shown by the testimony in the case, and in construing the evidence they must adopt the evidence which seems to them most reasonable, and they must reconcile all the evidence, if they can; and, if they find it impracticable to do this, positive evidence is regarded, in law, as of more weight than negative, and ordinarily, where the witness testifies that he saw the train, or heard the sounds, his testimony is entitled to more weight than the person who stated that he did not see, or that he did not hear. If, from the testimony, the jury are reasonably convinced that the engine was running at a speed not exceeding eight miles per hour, and that the bell was being rung from West street, where the engine started, to the platform, where the accident happened, then the verdict must be in favor of the defendant." (10) "The court charges the jury that even if the jury should find that the defendant or its agents failed to run the engine as prescribed by the ordinance of the city of Talladega, within eight miles per hour, and failed to give the statutory signals, by ringing the bell and blowing the whistle, while passing through Coffee street, this would be but 'simple negligence' on the part of the defendant; and notwithstanding this, if the plaintiff himself was negligent in entering on the defendant's track without stopping, and looking and listening for the approach of a train, and his negligence contributed proximately to the injuries he received, he cannot recover." (11) "The court charges the jury that, while the law requires of the defendant or its agents reasonable diligence in the operation of its train, it also requires of the plaintiff reasonable diligence for his own protection, and if he entered upon defendant's track at a time when his vision was obscured by the steam from a steam drill, when, by walking but a few steps down the track, he could have had an unobscured view of the track for two hundred or more yards, which would have insured his safety, then he cannot recover." (12) "The court charges the jury that it is not unreasonable that the plaintiff be required to exercise reasonable diligence for his own protection. Every one is bound to know that the track of the railroad company is a known place of danger, and foot passengers, as well as passengers in vehicles, are charged with notice of this fact, and when crossing, or attempting to cross, a railroad track, are required to stop, and look and listen for a train, before entering upon the track, and if they fail to do so, and receive injuries, they cannot recover. And if the view of the track is obstructed, or if the noise of the approach of the train is deadened by other noises, it is all the more incumbent upon the plaintiff to be careful, and see that the crossing is free from danger. If his view is obstructed, and if, as in this case, by taking a few steps, the plaintiff can avoid the obstruction, or get a clearer view of the track for such a distance as will insure his safety, he is guilty of such negligence, in failing to do so, as will preclude his recovery." (13) "The court charges the jury that the plaintiff had no right to walk up defendant's track, or to stand on the track, and if the evidence in this case shows that at the time the injuries were received the plaintiff was walking up defendant's track, returning to his place of business, or was standing upon the track, noticing or watching the operation of the steam drill, then he cannot recover." (14) "The court charges the jury that in order to find a verdict for the defendant it is wholly unnecessary that the jury, from the facts in this case, should determine that the plaintiff has testified falsely, or that any of his witnesses have done so. If the testimony of the plaintiff is in conflict with the testimony of other witnesses...