Weatherly v. Nashville, C. & St. L. Ry.

• Citation: 51 So. 959,166 Ala. 575
• Parties: WEATHERLY v. NASHVILLE, C. & ST. L. RY.
• Decision Date: 21 December 1909
• Court: Supreme Court of Alabama

51 So. 959

166 Ala. 575

WEATHERLY v. NASHVILLE, C. & ST. L. RY.

Supreme Court of Alabama

December 21, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by G. W. Weatherly, administrator, against the Nashville Chattanooga & St. Louis Railway. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Dowdell C.J., and Simpson, J., dissenting.

Culli &amp Martin and Howard & Hunt, for appellant.

Goodhue & Blackwood, for appellee.

MAYFIELD J.

Appellant sued to recover damages for the wrongful death of his intestate. The action is under our familiar homicide statute. The complaint contained six counts. Count 1 relied on simple negligence. The other counts declared on wanton negligence and willful injury. The wrongful act complained of in each count is that defendant ran one of its trains or engines against plaintiff's intestate, thereby killing him. The venue is a public street crossing in the city of Gadsden. The time was 8 o'clock at night, on May 27, 1907. The train alleged to have killed the intestate was a regular daily passenger train, coming into Gadsden at this hour. Each count alleges that intestate was crossing or attempting to cross the defendant's railroad track at a public street crossing in the city of Gadsden at the time of the injury. The defendant pleaded the general issue and contributory negligence to the first count, and the general issue as to the other counts. After the plaintiff had introduced all his evidence, the defendant declined to introduce any evidence, and moved the court to exclude that of the plaintiff's, and requested the general affirmative charge in its favor. The court granted the motion, and gave the charge requested, which, of course, resulted in a verdict for defendant, from which plaintiff appeals, here assigning various errors, chief among which are the exclusion of his evidence, and the giving of the charge for defendant. The complaint was unquestionably proven, except as to the allegations of negligence or willful acts of defendant which caused the injury.

Therefore the important, if not the sole, question for review is: Did the evidence show, or tend to show, that the intestate's death was proximately caused by any wanton negligence or willful act alleged, or was it the result of, or proximately caused by, any act of simple negligence alleged, to which injury or death intestate's own negligence did not proximately contribute, or was intestate's death, as shown by the evidence, a mere accident, for which no one is civilly liable? The plaintiff cannot, and should not, recover in this action unless the intestate could have recovered for the injury, under the same state of facts, if death had not resulted; that is, if he was guilty of such contributory negligence as would have barred his own action for the injury had death not resulted, then that same negligence will bar plaintiff's action when death resulted. Code, § 2486 (27). The fact that intestate cannot tell his story as to how the injury happened cannot be considered to raise a presumption in plaintiff's favor, or against the defendant. The case must be tried as if intestate were present and declined to testify, except that no presumption must be indulged against plaintiff for such failure to testify.

As to the first count, the evidence we think clearly shows simple negligence in running the train 30 miles per hour and in excess of the speed fixed by the municipal ordinance of the city of Gadsden. It was also open to the jury to infer from the evidence that there was a failure on the part of the railroad company to comply with section 5473 (3440) of the Code.

The next inquiry is: Was or could it be inferred by the jury that this negligence proximately contributed to or caused the death, or was the death the result of, or proximately caused by, intestate's own negligence, did plaintiff's own evidence affirmatively show this, or was it a mere accident for which no one is responsible, or was the jury authorized to infer wanton negligence or willful injury from this evidence, so as to avoid the contributory negligence of plaintiff's intestate, if found to exist? The mere concurrence of negligence on the part of a defendant, with injury to the plaintiff, does not always make a cause of action for the injury. The negligence of the defendant must proximately contribute to the injury; that is, but for the negligence, the injury would not have happened. The same is true as to the plaintiff's negligence. The mere fact that a plaintiff was guilty of negligence when he was injured by defendant's negligence does not defeat his action for the injury. To do this his negligence must have proximately contributed to his own injury. There is, however, a class of cases in which a plaintiff will be entitled to recover for an injury suffered when he was guilty of negligence, and when, but for his negligence, the injury would not have happened. This class of cases is where the negligence of the plaintiff precedes that of the defendant; that is, where the defendant was guilty of negligence which directly caused or proximately contributed to the injury after the plaintiff's negligence, and the defendant, by the exercise of reasonable care after knowledge of the plaintiff's negligence, could have avoided the injury. This class is denominated "subsequent negligence" and "last clear chance" cases. This same doctrine or rule also applies to defeat plaintiff's right of recovery, when he has the last chance to avoid the injury and negligently fails so to do, or is thereafter guilty of the last act of negligence which proximately contributes to his injury, which, but for his negligence, would not have resulted. This doctrine or rule had its origin in England, being first announced in the case of Davis v. Mann, 10 Mus. 7 & Wer. 546, in which the owner of a donkey turned it out upon the streets with its feet fettered and clogged, and a traveler on the highway negligently drove a wagon against it, and killed it.

The doctrine has since spread to the United States, and has been announced, clarified, and amplified by most all the courts of the Union, state and federal. It is only necessary to state the rule or doctrine as it has been announced in this state and applied to injuries caused at railroad crossings. Some of the cases in this state seem to deny the plaintiff's right to recover for personal injuries inflicted by a railroad at a public crossing where plaintiff himself was guilty of contributory negligence, unless the defendant was guilty of wanton negligence or willful injury; but a close examination of such cases will show that in each the negligence of the plaintiff was concurrent and continuing to the very time of the injury, and was therefore the efficient and direct cause of the injury, without which, it being so continuing and concurring, the injury would not have happened. In these cases the negligence of the plaintiff was clearly the "causa causans." Frazer's Case, 81 Ala. 185, 1 So. 85, 60 Am. Rep. 145. In Tanner's Case, 60 Ala. 621, the rule is applied, and held to be, that the plaintiff's negligence was no defense, if the defendant could thereafter, by the exercise of reasonable care, have avoided injuring him. In Cook's Case, 67 Ala. 539, it is said that, where an injury is perpetrated by a defendant either wantonly, recklessly, or intentionally, the defense of plaintiff's contributory negligence is thereby overcome and vitiated; but such conduct on the part of the defendant, says the court, is not necessary in order to establish his liability, though the negligence on the part of plaintiff may have co-operated to produce the damage--affirming and following Tanner's Case, and Gothard's Case, 67 Ala. 114, and qualifying Hanlon's Case, 53 Ala. 70.

If a person voluntarily places himself in an obviously dangerous position on a railroad track, or so near thereto as to be struck by passing trains, thereby assuming the risk, and while there continues to use no proper means of discovering the danger, or, on discovering it, continues in the dangerous position without attempting to avoid it, and, in consequence thereof, is struck by a passing train, he cannot recover, in the absence of wanton negligence or willful injury on the part of the railroad company; but if, after discovering his peril, the result of his contributory negligence, he attempts to avoid the injury, and the railroad company is thereafter guilty of any negligence, simple or wanton, which proximately contributes to his injury, the railroad company is liable. Authorities, supra; Richards' Case, 100 Ala. 365, 13 So. 944; Lee's Case, 92 Ala. 262, 9 So. 230.

Except at public crossings and a few other places, the track and right of way of a railroad are its exclusive property, upon which a stranger has no right to be, and to those who trespass thereupon it owes no duty as a rule, except not to wantonly or willfully injure them. But at public crossings a different rule prevails. There the public have a right to use the public street, road, or highway, to travel along it, on foot or in vehicles, and to cross the railroad track, if necessary to use the highway. The rights of the public and of the railroad to use the streets or highways where they are crossed or occupied by a railroad track are mutual and reciprocal. But, owing to the great weight momentum, and speed of commercial trains, they have the right of way at public crossings. They are confined to a fixed track upon the rails, and cannot turn to right or left to avoid collisions, as can other travelers upon the highway. Yet this right of precedence as to crossings does not exempt the railroad from the duty to try to avoid collisions thereat. The public and the...