Western Ry. of Alabama v. Madison

• Decision Date: 12 November 1918
• Docket Number: 3 Div. 295
• Citation: 80 So. 162,16 Ala.App. 588
• Parties: WESTERN RY. OF ALABAMA v. MADISON.
• Court: Alabama Court of Appeals

80 So. 162

16 Ala.App. 588

WESTERN RY. OF ALABAMA v. MADISON.

3 Div. 295

Court of Appeals of Alabama

November 12, 1918

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by G.P. Madison against the Western Railway of Alabama. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The complaint on which the trial was had charged that defendant was engaged in the business of operating a railroad in the county of Montgomery, and defendant did so negligently conduct its said business that upon a named date at a point between the city of Montgomery and the Mt. Meigs station, in said county, did run one of its engines or cars, being operated upon said railroad, against plaintiff's wagon thereby, and as a proximate result and consequence of said negligence, breaking and injuring plaintiff's said wagon. The question turned on whether the road was a public road or near a private crossing. On this question plaintiff testified that the road in question crossed the tracks and went up to his sister's house through land formerly owned by his grandfather and father, and that the Madison kinfolk owned the land from the lower Wetumpka road, a public thoroughfare up to where his sister lived, and that they had never sold any of it off, and that the land through which the road ran all belonged to the Madison family, and that this road was used for the convenience of people living up where his sister lived; that nobody lived up there except his sister and kinpeople, and their renters, and that the road is used mostly by his sisters and renters of the Madison family although two or three other colored people live up there, and that they use this road when they had any heavy hauling to do; that he saw the Western Railway section hand fixing the crossing of the road with the railroad for the convenience of wagons. There was other evidence tending to show that the railroad kept the crossing in order, and evidence contra. The following are the assignments of error referred to:

(2) The trial court erred in charging the jury as follows "And one who, with due care and caution, goes on the track for the purpose of crossing is not a trespasser, and the railroad company owes the duty it owes to one who has the right to be on the tracks, and, gentlemen, for such a purpose a lookout must be maintained, since they are in no sense trespassers."

(3) Oral charge, also, as follows: "Having always the right to pass over the track, and in doing so when due care is observed by them not at their own peril, but upon the implication that the railroad company will keep a lookout for them in recognition of their right."

(4) Oral charge continued: "It was not incumbent on the railroad to keep up its crossing, but they owed a duty to keep a lookout and not negligently injure any one that was crossing that track."

The following is charge 6:

"If you believe from the evidence in this case that the road is a plantation road, then defendant owed plaintiff no duty until the wagon was discovered, and if you believe from the evidence that the engineer did all that could be done after the discovery of the wagon, then I charge you plaintiff cannot recover."

Steiner, Crum & Weil, of Montgomery, for appellant.

Hill, Hill, Whiting & Stern, of Montgomery, for appellee.

BROWN P.J.

In stating a cause of action for negligence, it is incumbent on the plaintiff to show by appropriate averments that the defendant owed him a duty, that there was a breach of such duty, and that injury resulted as a proximate consequence. While a breach of duty may be shown by general averments amounting to the statement of a legal conclusion, the averment of the facts from which the law raises a duty owing by the defendant to the plaintiff must be more specific, and must relieve the plaintiff from the imputation that he was a wrongdoer at the time of the injury, or that the injury was the result of negligence occurring after the discovery of peril. Stewart v. Smith, 78 So. 724; Walker v. A., T. & N.R.R. Co., 194 Ala. 360, 70 So. 126. What was said in the case first above cited is here appropriate:

"The complaint considered in Walker v. A., T. & N.R.R. Co.,

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