Watson v. Birmingham Southern R. Co.

• Decision Date: 06 August 1953
• Docket Number: 6 Div. 544
• Citation: 66 So.2d 903,259 Ala. 364
• Parties: WATSON v. BIRMINGHAM SOUTHERN R. CO. et al.
• Court: Alabama Supreme Court

Page 903

66 So.2d 903

259 Ala. 364

WATSON v. BIRMINGHAM SOUTHERN R. CO. et al.

6 Div. 544.

Supreme Court of Alabama.

Aug. 6, 1953.

Hare, Parsons, Wynn & Newell, Birmingham, for appellant.

Burr, McKamy, Moore & Tate and Andrew J. Thomas, Birmingham, for appellees.

MERRILL, Justice.

Plaintiff sued defendants for damages for injuries received when his automobile ran into a train at a public crossing. This appeal is from verdicts in favor of the defendants as a result of the giving of the affirmative charge requested by the defendants at the conclusion of the introduction of evidence.

Woodward Iron Company owned the railroad tracks, the roadbed and the signal devices, and Birmingham Southern Railroad Company operated the train involved in the accident.

Plaintiff alleged that the defendant Woodward Iron Company negligently failed to maintain at said crossing or its approaches any warning device reasonably adequate, at night, to give warning of the existence and location of said railroad crossing. It was alleged that the defendant Birmingham Southern Railroad Company negligently obstructed said public grade crossing with an unlighted freight car, well knowing the aforesaid dangerous conditions of visibility for motorists approaching said crossing at night.

The Globe Indemnity Company intervened in that said intervenor had paid compensation to the plaintiff under the Workmen's Compensation Act of Alabama and also furnished medical and hospital treatment.

On the first trial of the case, the trial court gave the general affirmative charge with hypothesis on behalf of the defendant Woodward Iron Company, and a judgment was entered in favor of said defendant. The jury was unable to agree on a verdict with reference to the defendant Birmingham Southern Railroad Company, and a mistrial was declared by the court.

On the second trial, upon the same pleading and evidence as on the first trial, the trial court gave the jury the general affirmative charge with hypothesis in favor of the defendant Birmingham Southern Railroad Company. Plaintiff filed a motion for a new trial, which was overruled. Plaintiff appealed and has three assignments of error, one and two being that the court erred in directing a verdict in favor of the defendants, Birmingham Southern Railroad Company and Woodward Iron Company, respectively.

The accident, which is the basis of this suit, occurred about 9:15 at night on March 2, 1951. The weather was fair, the pavement dry, and there was no evidence of fog. The crossing was known as the Robertstown Grade Crossing, and is located between Brighton and Bessemer in open country.

The plaintiff was not familiar with the territory. He testified that as he approached the railroad crossing, after topping the crest of a rise in the road, he was traveling slightly downgrade at a rate of speed of forty to fifty miles an hour; that his lights were on and good so far as he knew; that his automobile was within fifty or sixty feet of the railroad crossing when the lights thereof picked up the undercarriage of a railroad car that was crossing the highway; that he immediately went for his brake and cut to the right, but he had slowed up very little before the collision occurred. The train was an eighteen car freight train, and plaintiff's car hit the front end of the seventeenth car, a gondola, and derailed it. Plaintiff received his injuries as a result of this collision.

There were two cross-arm signs at the railroad crossing when the accident occurred, one on the right and one on the left of the highway, each of which read 'Railroad Crossing'. The planks forming the sign on the west side of the highway were five feet long and ten inches wide with five-inch letters, and the center of said sign was ten and eight-tenths feet high. The cross-arm sign on the east side of the highway was four feet long and six inches wide with five-inch letters, and the center of that sign was nine feet and six inches high. The cross-arms were painted white with black letters.

The county highway engineer, a witness for the plaintiff, testified that north of the railroad track the highway was perfectly straight for nine hundred feet (plaintiff was traveling south); that the highest point of elevation in the highway was three hundred and fifty feet north of the railroad track, and he identified pictures of the highway and the crossing which were introduced by both plaintiff and defendants. He further testified that standing at the crest of the road three hundred and fifty feet north of the railroad track in the daytime he could see both railroad cross-arm signs which are shown in the photographs.

It was undisputed that the train was moving about ten miles per hour; that as it approached the crossing the horn was blown and the bell was ringing; that the windows of plaintiff's car were up and he heard no noise of any kind above that of his motor, and he neither saw nor heard anything that put him on notice that he was aproaching the crossing until he was about fifty or sixty feet away from it.

Appellant's opening statement in his brief says that the single question in this case is whether or not the facts bring it within the application of the decision of Callaway v. Adams, 252 Ala. 136, 40 So.2d 73. We are in agreement with that statement. The general rule is clearly stated in Southern Ry. Co. v. Lambert, 230 Ala. 162, 160 So. 262, 263, as follows:

'This court, in line with the great weight of authority, has declared the rule that, in the absence of s...