Alabama Great Southern Railroad v. Anderson

109 Ala. 299 | Ala. | 1895

BRICKELL, C. J.

We have several times had occasion to consider the relative duties of railway companies and travellers at public crossings. Our former decisions on the subject will be found collated in Louisville & Nashville R. Co. v. Webb, 97 Ala. 308. Tn that case, as here, the injury occurred where a thoroughfare in the city of Birmingham crossed the tracks of several railroads ; and we attempted to differentiate cases of this character— crossings in populous cities — from less frequented crossings in the count ry. This case differs from that, in the fact that the person there injured was a pedestrian, while here he was driving a vehicle ; but this fact in no wdse affects the principles there announced. The duty to-increase the degree of care in proportion to the danger to be apprehended, at such places, pertains alike to both cases.

A number of sections of the City Code of Birmingham, relating to the movement and speed of trains, the duties of flagmen, &c., were put in evidence. By section 465, it is provided : ‘ ‘It shall be the duty of such flagmen to remain at all times in full view of persons approaching such crossings, either on foot or in vehicles, and to signal them to pass over, if they can safely do so, or to stop, if a train is .approaching too near to admit of a safe passage.” Section 466 prohibits the moving of trains at a greater rate of speed than 8 miles an hour, when running forward, or four miles an hour when moving backward, and requires a headlight on the engine or train at night, and the giving of signals by whistle or bell, at all times. By section 467, the making of flying or running switches on or across any street is prohibited, and made punishable by fine. We have held in many cases that a violation of ordinances of this character is culpable negligence. Louisville & Nashville R. Co. v. Webb, supra, and cases there cited. Whether, notwithstanding such violation, the plaintiff may be barred by contributory negligence, depends upon the attendant facts. In the Webb case, supra, we held that running a train at a high rate of speed over a crossing such as this might “amount to that recklessness which is the equivalent of wantonness-and willfulness ; ” but that the question was one for the juiy. This is a stronger case,' taking it in its most favorable aspect for the appellant. A ‘ ‘kicking” or “flying” switch was being made in the night time, over one of the most frequented streets of the city. But whether, on the facts alone, the servants of the company were not guilty of such recklessness as would be the equivalent, as matter of law, of wantonness or willfulness, the necessities of this case do not require us to decide. That they were guilty of simple negligence cannot bo denied.

Was there contributory negligence on the part of the plaintiff? We have frequently emphasized the duty to stop, look, and listen on approaching a public crossing.— Louisville & Nashville R. Co. v. Webb, 90 Ala. 185. In Georgia Pacific Ry. Co v. Lee, 92 Ala. 262, the necessity of “looking” was qualified, in cases where, the view being obstructed, the driver, in performing the duty, would be compelled to leave his team unattended. Here, as there, the view was obstructed by a standing train. It is unnecessary, however, to discuss this aspect of the case, for it is affirmatively shown that the plaintiff went upon the crossing without stopping. This, if inexcusable, would, of itself, constitute contributory negligence ; and if excusable would also dispense with the other duty. In Webb’s case, 90 Ala. 185, 197, we left it an open question whether the fact that the gate to a crossing was left open (it being the duty of the servant to close it on the approach of a train) was not an implied invitation to cross." Treating that question as still open, the evidence of the plaintiff and the person who was .with him, if believed, here disclose an express invitation. Both testify that the flagman displayed a' white light, which,under the section we have quoted, was an assurance that the way was clear. There is other evidence, it is true, in conflict with this; but, on the whole evidence, aided by the presumption that the plaintiff, if warned in time, would not have placed himself in a position of such imminent peril to his life and limb, we will not disturb the finding. Besides, it is shown by the evidence that the servants of the company, before the danger became imminent; were aware of the approach of the vehicle. If, as the flagman testifies, the plaintiff was distant 150 feet when he was warned, it was his duty to have flagged the approaching train, upon discovering that his warning was unobserved or unheeded. It is.also shown that the brake man was aware of the approach of the vehicle, when preparing to uncouple the moving cars. A signal at this juncture, to the engineer, would, under the evidence, have averted the injury.

On the whole evidence, we concur in the judgment of the court below.

Affirmed.