Turner v. ATLANTIC COAST LINE RAILROAD COMPANY

• Decision Date: 10 May 1955
• Docket Number: No. 15226.,15226.
• Citation: 222 F.2d 337
• Parties: Eva L. TURNER, as Administratrix of the Estate of Paul Turner, deceased, v. ATLANTIC COAST LINE RAILROAD COMPANY.
• Court: U.S. Court of Appeals — Fifth Circuit

222 F.2d 337 (1955)

Eva L. TURNER, as Administratrix of the Estate of Paul Turner, deceased, v. ATLANTIC COAST LINE RAILROAD COMPANY.

No. 15226.

United States Court of Appeals Fifth Circuit.

May 10, 1955.

Douglas Brown, Henry B. Steagall, II, Ozark, Ala., W. G. Hardwick, Dothan, Ala., for appellant.

Evans Hinson, Montgomery, Ala., Alto V. Lee, III, Dothan, Ala., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment on a directed verdict for the appellee railroad company in a suit brought by the widow for the wrongful death of her husband when the automobile in which he was driving stalled and was struck on a railway crossing in Ozark, Alabama.

The complaint was laid in four counts, numbers one and three of which alleged that the defendant negligently ran its train into the deceased's automobile, and numbers two and four of which alleged a willful and wanton running of defendant's train into the automobile. The defendant answered that it was free of any negligence, and, affirmatively, that the negligence of the deceased was the sole proximate cause of his death.

The trial was not a long one, and the principal facts were not in dispute. Of course, in considering the correctness of the trial judge's action, we must consider the competent evidence on behalf of the plaintiff as if it were undisputed. Witnesses for the plaintiff testified that the deceased, who was driving his automobile with a passenger named Faulk sitting in the right hand front seat, turned into Broad Street, which crossed the track, from Eufaula Street, between twenty-five and fifty feet from the railroad tracks; that he stopped before entering Broad Street; that he made his turn and drove slowly (at a speed estimated by Faulk to be fifteen and by a witness directly behind him to be five miles per hour) directly onto the first of the two sets of tracks; that when he got to the second or main line his car choked down and stalled; that neither he nor Faulk looked to the right, the direction from which the freight train of 119 cars and five diesel units was coming; that there was no obstruction to prevent them from seeing the train as they approached the track; that Faulk did not see the train until the car choked down, whereupon he saw it and said "we had better get off"; that the train was then six hundred yards away (he later changed this to six hundred feet, which other of plaintiff's testimony seems to bear out); that "we tried to get the thing started and couldn't, and I looked up again and I said `I am a going,' and I went out the door"; that the train then hit the automobile and killed Turner, no one having seen him get out of the car, although testimony was given by some of the witnesses that he might have tried to get out; that a witness named Tyler was within a few yards of the accident, being in an automobile directly behind Turner; that he saw Faulk leave and saw the train hit the automobile but did not see Turner leave, although he could not clearly see the left hand side of the Turner car. Witnesses for the plaintiff, Faulk and Tyler, and Chambers, who was sitting in his car a block and a half from the track on the next street, estimated the speed of the train at a maximum of 50 miles per hour; these three witnesses testified they did not hear a whistle or bell, but none of them would testify that none was sounded.

The testimony of the defendant's witnesses that was undisputed was that the fireman saw the Turner automobile as it approached Broad Street and as it turned and entered the right of way; that both he and the engineer saw it on the tracks when they were three or four hundred feet from the crossing; that the engineer then looked to his right at another automobile that was approaching the crossing from that side on a road running parallel to the tracks; that the fireman then saw that the Turner automobile was stopped and immediately called the engineer who "within the second" applied full emergency brakes; that the fireman saw Faulk leave the car and saw the driver working with the automobile mechanism and then apparently try to get out on the right side when the engine struck the car; that the train speedometer tape showed it was traveling at a speed of 40 miles an hour and that it stopped approximately 1100 feet beyond the crossing. The engineer did not put the locomotive in reverse, testifying that he used the most effective means to stop the train and that putting a diesel locomotive in reverse would not have effected any quicker stop. Both engineer and fireman testified that the whistle was blown a quarter mile from the crossing and subsequently, that the bell was ringing automatically and the electric headlight was burning, although it was a clear day. Other witnesses testified to having heard the whistle.

A city ordinance limited the crossing speed to 40 miles per hour.

In the light of this state of facts, the trial court directed a verdict for the defendant or, as is said in Alabama practice, he gave the jury the affirmative charge.¹

We think the trial judge correctly applied the Alabama law to the facts of the case, and that but little elaboration is needed. It is clear that the plaintiff's husband was negligent. We think it unnecessary to determine whether there were facts that could have supported a jury's finding that the railroad company was also negligent, for under the Alabama law contributory negligence is a complete defense. It is only in a case in which the railroad is negligent subsequent to the noncontinuing negligence of the injured party that the defense of contributory negligence is unavailing, or in a case where, after discovery of continuing negligence on the part of the injured person, the railroad acts in a wanton or willful manner. Here it is too clear for argument that before the negligent conduct of the deceased ended the defendant's engineer and fireman were doing all within their power to protect Mr. Turner from the results of his own negligence. This then leaves available the defense of contributory negligence, and rules out the theory of recovery for wanton conduct. The recent case of Atlantic Coast Line Railroad Co. v. King² has an excellent discussion of wantonness in such circumstances. There Chief Judge Hutcheson, speaking for this court, laid down this proposition as stating the Alabama law on the subject:

"`In order for an act, or omission, to constitute wantonness, the act done or omitted must be done or omitted with the knowledge and present consciousness that injury will probably result.\'" ³

In the case before us, Mr. Turner was negligent in attempting the crossing without looking to see the train approaching; he was negligent in not looking...