Washington v. Birmingham Southern R. Co.

• Decision Date: 19 June 1919
• Docket Number: 6 Div. 854
• Citation: 203 Ala. 295,82 So. 545
• Parties: WASHINGTON v. BIRMINGHAM SOUTHERN R. CO.
• Court: Alabama Supreme Court

82 So. 545

203 Ala. 295

WASHINGTON v. BIRMINGHAM SOUTHERN R. CO.

6 Div. 854

Supreme Court of Alabama

June 19, 1919

Appeal from Circuit Court, Jefferson County; C.W. Ferguson, Judge.

Action by Isaiah Washington, as administrator, against the Birmingham Southern Railroad Company for damages for the death of his intestate in a collision. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Plaintiff's intestate was a passenger in a jitney automobile, and was killed by its collision with defendant's train while crossing defendant's track at a public road crossing. The complaint contains three counts. Count 1 charges simple negligence in that the servants or agents of the defendant while acting in the line and scope of their employment negligently caused said train to collide with the automobile. Count 2 charges subsequent negligence after discovery of the peril of plaintiff's intestate by the servants or agents of the defendant; while count 3 charges that said collision was wantonly, willfully, or intentionally caused by said servant or agent. The trial was on the general issue only.

The evidence showed that the crossing was in frequent use by a great many people, and, by reason of a deep cut and sharp curve from which the train emerged when near at hand, was dangerous. The defendant had for a considerable period of time established and maintained an electric gong at the crossing which was automatically rung by approaching trains for a quarter of a mile before reaching a crossing. On this occasion the automatic gong did not ring at all, but the trainmen and others testified that the usual and proper signals of approach were given by blowing the whistle and ringing the bell of the engine. Some of plaintiff's witnesses testified that, although they were within hearing they did not hear any such signals, and several testified affirmatively that no signals of approach were given. The testimony for the defendant tended to show that the train was running about 20 miles an hour, while some of the testimony for the plaintiff tended to show that it was running about 50 miles an hour as it immediately approached the crossing. The trial judge instructed the jury at defendant's request as follows:

(b) The fact, if it be a fact, that defendant had placed a warning gong at the crossing and this gong was not ringing and was out of repair at the time of the accident cannot be considered by you in any way as a basis for your verdict.

(6) The court charges the jury that there was no duty on the defendant to keep and maintain an electric gong or bell at the crossing where the accident occurred.

(11) Defendant was under the duty of giving timely notice of the approach of the train to the crossing to people using the crossing; and

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