Wojciechowski v. Louisville & N. R. Co.

• Decision Date: 09 July 1964
• Docket Number: 7 Div. 607
• Citation: 277 Ala. 528,173 So.2d 72
• Parties: Hazel WOJCIECHOWSKI, as Adm'x, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY.
• Court: Alabama Supreme Court

Page 72

173 So.2d 72

277 Ala. 528

Hazel WOJCIECHOWSKI, as Adm'x, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY.

7 Div. 607.

Supreme Court of Alabama.

July 9, 1964.

On Rehearing March 18, 1965.

John R. Phillips, Anniston, for appellant.

Knox, Jones, Woolf & Merrill, Anniston, for appellee.

LAWSON, Justice.

This is an action under the homicide statute, § 123, Title 7, Code 1940, by Hazel Wojciechowski against Louisville & Nashville Railroad Company, a corporation.

The complaint charged negligence on the part of the defendant and the defendant pleaded the general issue in short by consent in the usual form.

At the conclusion of the evidence, the trial court directed a verdict in favor of the defendant. Judgment followed the verdict. Plaintiff's motion for new trial was overruled and she has appealed to this court.

The trial court did not err to a reversal in refusing to permit the jury to be polled, as that right does not exist in the case of a directed verdict. Reed v. Rideout's Ambulance, Inc., 212 Ala. 428, 102 So. 906.

The plaintiff contends that the trial court erred in directing a verdict for the defendant.

The death of plaintiff's intestate occurred at about 9:45 on the night of May 17, 1960, when the truck he was driving collided with defendant's diesel engine at a railroad crossing in the City of Albertville.

The truck was being driven on Highway 431, which for the purposes of this appeal may be considered as running in a northerly and southerly direction. The truck was headed north. The defendant's railroad track crosses Highway 431 at an angle, but for our present purposes we will consider that the railroad track runs generally in an easterly and westerly direction.

In the vicinity of the place where the collision occurred, Highway 431 is a four-lane highway, the two north-bound lanes being separated from the south-bound lanes by a grassy parkway. The highway was straight and practically level. There were no obstructions of any kind at or near the crossing which would interfere with the view of the crossing by one approaching it. The weather on the night of the accident was clear and the road was dry.

On both sides of the north-bound lanes and on both sides of the south-bound lanes there were warning signs. They consisted of the standard cross-buck signs, which were several feet high. On the poles supporting the cross-buck signs, flashing lights and automatic bells had been installed. Underneath the flashing lights was a sign saying, 'Stop on Red Light.'

According to the evidence for the defendant, its train approached the crossing from the east. The train was being pulled by two diesel engines. The train stopped about 200 feet east of the highway, where the freight cars were disconnected from the two engines. The two engines then pulled up across the north-bound lanes of traffic, where they waited for a switch to be thrown in order that the engines could be backed into a spur track leading into the premises of a business concern situated some distance east of Highway 431 and south of the railroad track. The switching operation was being made in order to pick up some freight cars from the spur track.

The defendant's testimony is to the effect that during the switching operation the rear end of the second diesel unit was approximately five or six feet west of the point where the switch was to be thrown; when the engines stopped the brakeman got down from the back of the engine and headed for the switch. Before he reached the switch and before the engines could be backed in an easterly direction to enter the spur track the collision occurred. Defendant's testimony as to the length of time that the engine blocked the north-bound lanes of traffic varies from five or six seconds to as much as thirty or forty seconds.

There is no dispute in the evidence of the fact that the truck being driven by plaintiff's intestate in the outside lane of that part of the highway designed for north-bound traffic did not stop before it crashed into the side of the lead engine, that is, the first of the two diesel units which were pulling the train.

The evidence for the defendant is to the effect that at a point approximately 1,000 feet east of the crossing an electric switch was thrown, which automatically turned on the automatic flashing signal lights and bells; that the engineer of the train gave four blasts of the train whistle before entering the highway; that after entering the highway the flashing lights and automatic bells continued to operate and the bell on the engine was rung. There was no light in the cab of the engine but the headlight on the front engine was on. There were no street lights at the crossing.

If the defendant's evidence stood without dispute we think it would be clear that the trial court correctly gave a directed verdict for the defendant. The record shows that this action of the trial court was based on our holding in the case of Lambeth v. Gulf, Mobile & Ohio R. Co., 273 Ala. 387, 389, 141 So.2d 170, 172, wherein we said:

'The general rule, and governing here to sustain the ruling of the trial court, is that where a motorist fails to 'Stop, Look & Listen' before crossing a railroad track, and he thereby runs into or collides with a train on its track at a public crossing, he is guilty of contributory negligence as a matter of law and his negligence will be treated as the sole proximate cause of his injuries. (Authorities cited)'

But in this case, as we have shown, the railroad provided special warnings to the motorist in the form of automatic lights and bells and one of the plaintiff's witnesses testified that he followed the course of the truck as it proceeded north toward the railroad crossing and that the flashing lights were not on and he heard no bells ringing. While he stated that the truck did not stop before entering the crossing, he testified that he did see the brake lights come on.

Of course, where, as here, we are dealing with the action of the trial court in directing a verdict in favor of the defendant below, we are required to review the evidence in the light most favorable to the plaintiff. Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d 793.

The plaintiff contends that when the evidence is viewed in the light most favorable to her, the conclusion is inescapable that the trial court erred in directing a verdict in favor of the defendant, in view of the holdings of this court in Birmingham Southern R. Co. v. Harrison, 203 Ala. 284, 82 So. 534, and Washington v. Birmingham Southern R. Co., 203 Ala. 295, 82 So. 545.

In the Harrison case, supra, this court said on original deliverance as follows:

'The right of travelers to rely on automatic signals at crossings has been of recent and frequent discussion by the courts. The rule of the cases is that one who proceeds along a thoroughfare to a crossing when and where an automatic signal is known by him to be maintained, while entitled to place or warranted in giving some degree of reliance upon the indication of safety which the signal implies, must nevertheless use such care in addition as an ordinarily prudent man would exercise under like conditions. Thus, if a railroad company has placed a gate, flagman, signal bell, gong, or automatic device at a crossing, and has so long maintained the same to warn travelers of the approach of trains or engines or the danger of attempting to cross that travelers (including plaintiff) have relied, and are authorized to rely, thereon in the exercise of due care, nothing of contradictory indication appearing, the failure of the company to operate the gate, or to flag, or to ring the bell, gong, or other automatic device at the crossing or in lieu thereof to give other due and proper warning of the approach of the train, would not wholly excuse the traveler approaching such crossing from the exercise of a reasonable care and caution such as would ordinarily be exercised by a careful and prudent man under similar circumstances. It would, however, have the effect, in the case of a traveler meeting his death at such crossing, to invoke the presumption that such traveler was in the exercise of reasonable care and caution immediately before and at the time of the collision, unless the other evidence should rebut that presumption. Welch v. B. & O. R. Co., Pennewill (Del.) 140 , 76 Atl. 50, 53. It has been held proper, where such automatic signal was maintained at crossings, to show 'that it did not work, on both the question of defendant's negligence and of plaintiff's freedom from fault.' * * *' (203 Ala. 292, 82 So. 542.)

On rehearing in the Harrison case we said:

'Whether or not this was such a crossing that the statutory signals required would not have sufficiently conserved the safety of the traveling public, and that the defendant was therefore under a legal duty to maintain additional warnings or signals, we need not decide, for the reason that this defendant erected and undertook to maintain an automatic gong to warn travelers upon the highway of the approach of trains at this crossing. Therefore one who knew of this gong had a right, to some extent, to rely upon its being rung or its failure to give a warning, and after the defendant placed the same there it was its duty to keep it in a working condition, or else give notice in some way that it was out of repair or was not working, and its failure to give warning was a circumstance for the jury as bearing both upon its negligence and the conduct of the driver. * * *' (203 Ala. 294, 82 So. 544.)

In the Washington case, supra, which arose out of the same facts as the Harrison case, supra, we said as follows:

'Pretermitting any decision as to the duty of the defendant railroad to establish an automatic gong at this particular crossing in the first instance, we held that, having so established it, and allowed travelers who were aware of it to rely to some extent upon its operation as a warning to them in...