Walker v. Alabama, T. & N. Ry.

• Decision Date: 04 November 1915
• Docket Number: 2 Div. 596
• Parties: WALKER v. ALABAMA, T. & N. RY.
• Court: Alabama Supreme Court

70 So. 125

194 Ala. 360

WALKER v. ALABAMA, T. & N. RY.

2 Div. 596

Supreme Court of Alabama

November 4, 1915

Appeal from Circuit Court, Sumter County; Bernard Harwood, Judge.

Action by O.M. Walker, as administratrix of the estate of J.P Stallings, against the Alabama, Tennessee & Northern Railway. Judgment for defendant, and plaintiff appeals. Affirmed.

Bondurant & Smith, of Birmingham, for appellant.

Wm. H Armbrecht and Walter H. White, both of Mobile, for appellee.

SAYRE J.

Count A is identical with count 1, except that the first-named count omits the word "public" where it is used in the latter to describe the road crossing at which plaintiff's intestate received the injuries which resulted in his death. The proper construction of count A, then, is that intestate was crossing defendant's railroad at a private or neighborhood crossing. On the averments of count A plaintiff's intestate, while crossing the track at that place, was not a wrongdoer, but was entitled to such consideration as the law accords to a bare licensee. The specific requirements of the statute, section 5473 of the Code, which makes it the duty of the engineer to blow the whistle or ring the bell before reaching any public road crossing, are not to be extended beyond the language of the statute, and have no operation in cases of injuries occurring at private crossings. Cook v. Central R.R. of Ga., 67 Ala. 533. Where, however, a railroad company holds out an invitation to the public to cross at a particular place, as, for example, by preparing and maintaining a crossing for the public convenience, it assumes in the operation of its trains at such place, without regard to the statute, the burden of exercising reasonable precautions to protect the public when using it on such inducement or invitation; the degree of care to be measured, not by the absolute requirements of the statute, but by the potentialities and probabilities of the situation thus created. Elliott on Railroads § 1154, and authorities cited in note 20. Testimony was offered with a view to proving an invitation to use the crossing under the authorities just cited; but that, of course, is not a subject for consideration in passing upon the sufficiency of the pleading. The count under review contained no allegation that defendant had done anything to induce or invite the public to cross at the place in question, and the evidence offered to prove the fact was really without the issue joined. On demurrer the count must be construed most strongly against the plaintiff, and, so construed, it means only that intestate came to his death by reason of injuries suffered at a private or neighborhood crossing, without more. In these circumstances it was not incumbent upon the defendant to know the presence of plaintiff's intestate upon the track or to keep an especial lookout for him. The only duty imposed upon the engineer was to use due and reasonable diligence to avoid injuring intestate after becoming aware that he was in a position of danger. A.G.S.R.R. Co. v. Linn, 103 Ala. 134, 15 So. 508. No doubt the trial court had these principles in mind when sustaining the demurrer to count A; but the court appears to have overlooked the fact that the averments of the count were broad enough to cover negligence on the part of tile engineer in failing to take preventive measures subsequent to his actual discovery of intestate's danger, and so to support a recovery on that theory of the facts. Central of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 217, 27 So. 1006; Liverett v. N.C. & St. L. Ry., 186 Ala. 111, 116, 65 So. 54. The demurrer therefore should have been overruled.

Birmingham Southern R. Co. v. Kendrick, 155 Ala. 352, 46 So. 588, is cited, to sustain the ruling in the court below. But it must be observed that the complaint there stated no case devolving upon the engineer the duty to keep a lookout. On the contrary, plaintiff's allegation was that he was attempting to pass between the cars of a train standing over a crossing that was merely customary. Nor was the complaint so general as to admit proof of subsequent negligence. On the contrary, the averment was of a specific act of initial negligence, viz., the failure to give warning of the approach of the engine that shoved the cars together, so causing plaintiff's injury, and the issue of law and fact was thus by the plaintiff's election narrowed and confined to the single inquiry whether the engineer was in duty bound to assume that at such a place some one might be engaged in the attempt to pass between the cars, and whether, on...