Thompson & Donohoo v. Mobile & O.R. Co.

• Decision Date: 30 June 1924
• Docket Number: 6 Div. 930.
• Citation: 101 So. 441,211 Ala. 646
• Court: Alabama Supreme Court
• Parties: THOMPSON & DONOHOO v. MOBILE & O. R. CO.

101 So. 441

211 Ala. 646

THOMPSON & DONOHOO v. MOBILE & O. R. CO.

6 Div. 930.

Supreme Court of Alabama

June 30, 1924

Rehearing Denied Oct. 16, 1924.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action for damages by Thompson & Donohoo against the Mobile & Ohio Railroad Company. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Jones Jones & Van de Graaff, of Tuscaloosa, for appellants.

Foster Verner & Rice, of Tuscaloosa, for appellee.

BOULDIN J.

The suit is for damages resulting from the collision of a motor truck with a locomotive at a grade crossing. The sole question here presented is: Did the evidence make a case for the jury on the counts presenting an issue on negligence of defendant's servants after discovery of peril?

The facts not in substantial controversy, as far as deemed material, are: That there was a collision at a grade crossing of the railroad and a public highway; that the locomotive with train of cars was some 660 feet in length; that the truck was of 3 1/2 tons capacity, loaded with about 2,500 pounds of freight; that the engineer on the locomotive and the driver on the truck were both familiar with the crossing that the railroad track was straight; that the collision occurred in daylight; and that both train and truck were in motion when they came in collision. The evidence of the truck driver tended to show that he approached the crossing at the rate of 8 to 10 miles per hour; that when within about 200 feet of the crossing he slowed down the truck, keeping a lookout first to his right; that when within 20 to 25 feet of the crossing he looked to the left and saw the train approaching about 200 feet from the crossing; that the truck was then moving about 4 miles per hour; that he put on gas to get across ahead of the train, being of opinion it was safer so to do than to stop the truck; that the engine did not respond promptly, and he then did try to stop; that seeing the train was upon him, he abandoned the truck, which was struck midway and knocked about 30 feet; that no signals of alarm were given, and the train did not perceptibly check its speed until about the moment of collision; that the train was running about 35 miles per hour, and came to a stop with the last car and caboose at the crossing. The evidence of the engineer tended to show the train was fully equipped and in good order; that he was keeping a lookout for the crossing; that he first saw the truck when it was about 50 feet from the crossing running about 15 miles per hour; that the locomotive was then 75 to 100 feet from the crossing, running about 18 to 20 miles per hour; that he immediately used all possible preventive effort to stop the train, and brought it to a stop within about 250 feet; that the crossing signal was given one-fourth of a mile from the crossing, the whistle blown at intervals, and the bell was automatically ringing. There was other expert testimony that the stopping distance of the train going at 20 miles per hour would be about 600 feet; and evidence that the stopping distance of the truck going at 4 miles per hour would be about 10 feet.

Some evidence tended to show obstructions to the view by bushes growing on the...