Young v. Woodward Iron Co.

• Decision Date: 24 March 1927
• Docket Number: 6 Div. 456
• Citation: 113 So. 223,216 Ala. 330
• Parties: YOUNG v. WOODWARD IRON CO. et al.
• Court: Alabama Supreme Court

113 So. 223

216 Ala. 330

YOUNG v. WOODWARD IRON CO. et al.

6 Div. 456

Supreme Court of Alabama

March 24, 1927

Rehearing Denied June 2, 1927

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages for wrongful death by Mrs. J.L. Young, as administratrix of the estate of J.L. Young, deceased, against the Tennessee Coal, Iron & Railroad Company, the Birmingham Southern Railroad Company, the Woodward Iron Company, and M.H. Giles. From a judgment for defendants, plaintiff appeals. Affirmed in part, and reversed, rendered, and remanded in part.

New trial may be granted as to one of several defendants, sued in tort, without affecting others, on discovery of new evidence admissible against one alone.

The plaintiff's intestate, a locomotive engineer operating an engine and passenger train on the Alabama Great Southern Railroad, ran his engine and train into a train of freight cars at a railroad crossing, and was killed. The freight train belonged to the defendant Tennessee Coal, Iron &amp Railroad Company, and the engine was operated by the defendant M.H. Giles, locomotive engineer.

The Woodward Iron Company and the Birmingham Southern Railroad Company were also made parties defendant.

The complaint is in three counts: For simple initial negligence subsequent negligence, and wanton or willful injury, respectively. All of them charge that the intestate's death was caused by the negligence or wanton misconduct of "defendant's servants or agents." The general affirmative charge was given for the two defendants last named, and the plaintiff withdrew counts 1 and 3, leaving only the count for subsequent negligence to be submitted to the jury, and on that count the trial was had, and the verdict and judgment rendered.

The following facts are undisputed: About 1 o'clock a.m. defendant's train approaching the Alabama Great Southern Railroad crossing, came to a stop, blew twice, and then proceeded to cross. It was a train of 31 empty ore cars, besides the engine and tender. Twenty-one cars had gotten over the crossing when the Alabama Great Southern train, driven by the intestate as engineer, and running from east to west at a speed of 25 or 30 miles an hour, crashed into defendant's train, without having stopped or slowed down for the crossing. Defendant's train had been on the crossing about 2 1/2 to 3 minutes when the crash occurred, the engine, on which were the engineer, fireman and conductor, being then about 670 feet beyond the crossing. A switchman, Will Mitchell, had preceded his train over the crossing on foot and was at the Woodward Junction switch, about 30 feet beyond the engine, when he saw the lights in the coach windows of the approaching Alabama Great Southern train, and heard its engine working steam. There was a heavy fog over everything at the time, so dense that an engine's headlight would disclose objects only two or three car lengths ahead. The intestate was an old engineer and thoroughly acquainted with the track at this crossing. The Lipscomb dirt road crossing over the Alabama Great Southern track was about a quarter of a mile east of the Woodward crossing where the collision occurred.

Will Mitchell, defendant's switchmen, testified for plaintiff as follows:

"As he (defendant's train) came on to me while I was up here at Woodward Junction switch, I discovered the light from the Alabama Great Southern engine coming over one hill and going down and coming up another hill. I could see his light above the fog, but I couldn't see him when he got on the level, before he got on the (dirt road) crossing. *** When I first saw the reflection of his headlight in the sky, I was standing on the main line. *** I discovered it was him away up the track a couple of miles. *** I knew it was the headlight from an engine coming along the Alabama Great Southern track. *** I was at the Woodward Junction switch when I saw the lights in the coaches of that passenger train as it approached. *** It had about crossed that dirt road crossing when I first saw it. *** The engine wasn't cut off, but was pulling his train. *** When I saw those lights and heard the engine working steam, Young's train was distant from the defendant's train I will say about 90 feet; maybe 100 feet. *** When I saw him coming up here about this dirt road crossing and working steam, I left Woodward Junction switch and made it back towards the engine. *** I started back, *** and the first thing I did when I started back, I hollered to *** the fireman on that Tennessee Company's train that I thought that man was going to cut us in two down there, and made it on towards the other end. I was running. *** I didn't get to the back end of my train *** before they hit. Neither the fireman nor the engineer did anything at all, or gave any warning to this man as he approached, when I hollered to the fireman. *** No whistle was blown. *** Where a train is blocking the crossing on the back end, *** the warning signal in case of danger is one long blast of the whistle. *** That signal is used on the Tennessee Company's train as warning under the conditions that existed *** and also on the Alabama Great Southern Railroad. *** I did not give any signal to anybody about the train coming. *** He was away on the other side of the dirt road crossing when I heard him. He kept on going fast all the time *** until he hit. *** You couldn't see the headlight. I guess the headlight was burning. *** It was up hill at Lipscomb, but it is a curve. It was pulling around a curve there a that time."

O.W. Fidler, an experienced engineer, testified that, with the use of sand and the emergency application of brakes, the Alabama Great Southern train could have been stopped within 300 to 350 feet.

F. Aderholt, another experienced engineer, testified that he could stop a train at this crossing, by using sand and emergency, in about 300 yards, and could reduce its speed from 30 to 15 miles an hour in 300 feet.

Defendant's fireman, Muse, testified:

"I did not know the Alabama Great Southern train was approaching. *** There was nothing said about this train coming. I didn't know, until I was struck, that this train was coming at all. *** Our engineer could have blown that whistle in a fraction of a second. *** I did not hear any brakeman holler at me; I was looking straight ahead all the time."

Defendant's conductor, Vardaman, testified:

"I did not hear Will Mitchell, the switchman, say anything about this train coming, before this train hit. I was sitting by the fireman on the fireman's seat. *** I know when I hear a man working steam that he is not going to stop. *** There was nothing to keep us from seeing the light of that train as it approached us, except the fog. I didn't have any occasion to look over there; I couldn't have seen it if I had.

*** I don't know if there was anything to keep the engineer from seeing; the fog could have kept him from seeing it. It was not his business to look over that way after he went over that crossing; it was his business to be looking the way he was going."

Defendant's engineer, Giles, testified:

"The first intimation I had of any train coming was a light in the sky. I couldn't tell how far away it was then; there was nothing that I could tell whether he was going to stop or not. I was 4 or 5 car lengths from the crossing when I first saw that light. I was working steam at that time *** until I got in a few car lengths of Woodward switch. I did not know at any time that this train was not going to stop before it ran into our train. I did not see the train itself. No one called to me that the train was coming when it ran into me. *** As I pulled across the crossing I could see the reflection of the headlight in the sky, but I couldn't see the headlight. *** I wouldn't swear it was the headlight; I knew it was after he hit me. *** The fog kept me from seeing him, but, if there hadn't been any fog there, I couldn't have seen it on account of the trees. I couldn't see through there hardly at all. I could only have blown a caution signal, if I had known that that train was approaching, to have warned him that my train had blocked that crossing."

W.A. Denson, of Birmingham, for appellant.

Percy, Benners & Burr, of Birmingham, for appellees.

SOMERVILLE J.

The case was submitted to the jury under the second count of the complaint, charging that defendants' servants or agents, "after becoming aware of the peril of plaintiff's intestate being injured by said collision, negligently failed to use all of the means at their command to avoid said collision, when by the use of said means said collision would have been avoided and intestate's death would have been prevented."

The burden, therefore, was on plaintiff to show that a servant of the defendant corporation, in service on its train on this occasion, discovered that plaintiff's intestate was in peril of a collision, as averred, in time to have warned him of the impending collision, or by other means to have prevented it, and nevertheless, negligently failed to give him such a warning, or to use other available means for its prevention. L. & N.R. Co. v. Moran, 190 Ala. 108, 121, 66 So. 799; L. & N.R. Co. v. Rayburn, 192 Ala. 494, 496, 967, 68 So. 356; B. & A. Ry. Co. v. Campbell, 203 Ala. 296, 300, 82 So. 546.

Counsel for plaintiff stated to the trial judge while he was charging the jury that the defendant corporation could not be found guilty of negligence unless its engineer, Giles, was guilty, and unless the jury found against both defendants they could not find against either. The issue depended, therefore, upon the negligence, vel non, of Giles.

Specifically the inquiry was: (1) Did Giles discover that the intestate was ignorant of the presence of Giles'...