Birmingham Belt R. Co. v. Nelson
112 So. 422
Ala.
1927
Check Treatment

*1 NELSON BELT R. CO. v. BIRMINGHAM hypothesis error, 422) since it was without versible on belief of evidence. NELSON. CO. v. R. BELT BIRMINGHAM (6 Div. <&wkey;351(16) failed motorist 7.Railroads crossing stop, look, listen before .rail- 24, 1927. March charge road, he was contribu- refusal of Rehearing 1927. Denied negligent torily held érror. against for In action motorist railroad I) Motorist, <&wkey;327( Railroads personal ing, injuries at cross- sustained collision crossing look, rail- stop, before listen and. jury charge that, if believed evi- refusal of contributory road, guilty of held guilty negligence proxi- dence, mately contributing look, stop, Motorist, listen who did not error, accident, held railroad, attempting immediately before stop, look, listen where immediately failed to approaching train have discovered who could track. before proximately doing so, held contributing injury train sustained when ear, Appeal antece- Oourt, for so as to bar struck dent from Circuit Coun- of railroad. ty; Denson, Judge. John <&wkey;350(33) railroad’s damages injuries 2. Railroads personal Action for for —Whether peril employees in time discovered motorist’s against H. Belt C. Nelson prevent collision held for Company. judgment Railroad for Prom a appeals. personal against in- railroad In action plaintiff, Transferred juries at in collision with automobile Appeals from the Court of under Code jury ques- to take to held sufficient evidence 7326. Reversed § employees discovered railroad’s tion whether plaintiff’s peril charges col- in time to have These defendant: by stopping. lision “(7) charges jury you The court if Nelson, believe the Mr. <&wkey;350(34) evidence this held 3. Railroads —Wantonness car, showing approached the driver of the jury proximately contributing per to the accident.” hour 15 miles “(11) charges jury The court or lookout. negli- of the automobile driver- against in- railroad for In motorist’s action gence proximately contributing crossing, question juries of wan- in collision stopping automobile, in not and after so jury, showed held for tonness that stopping, looking, listening ap- approached crossing, which was proaching train before to cross over sig- “populous,” hour without at 15 miles the track.” nals, warning, or lookout. charges “(22) jury you that, The court if barring <&wkey;338Charges recov- Railroads proxi- — best believe from the evidence that mate cause of the accident was the the sole ery, in honest if trainmen did prop- prevent accident of the driver on going upon of the automobile erly refused. stopping the track without first approach- against for ascertain whether or not a train was action In motorist’s you thereon, if injuries further believe from personal in collision train, prior in the evidence that charges best to the acci- their if train crew “did dent, at all times acci- their honest dent,” care, your crew and dict cannot with due then ver- should plaintiff.” be for the erly refused. Oabaniss, Johnston, Cocke & Oabaniss &wkey;>!067 personal Appeal in- error —In Dixon, Birmingham, appel- Brewer all of charge barring jury ery, recov- refusal lant. jury “believe” accident was sole- if should plaintiff’s held not re- ly due to Where the admitted facts show conclusive- “reasonably error; satisfied.” versible ly ap- could have seen the personal against railroad, action proaching In train in time to avoid collision barring charge recovery, refusal stopping, looking, likening, Ms fail- solely due “believe” accident was should proximate ure to do so was the cause of the held not reversible as a matter law. Hines v. term ex- satisfied” is correct since 205 Ala. Peters v. Southern required. pressing conviction 135 Ala. Rothrock v. definitions, Note.—Por other see Words [Ed. S., S4; A. G. L. N. v. Reasonably Phrases, Satisfied.] Rush, Eayet v. St. &wkey;>1067 Appeal E., L. & S. So. 671. The bur- on belief of evi- proving upon wanton den conduct was personal dence held not reversible error in discharge the- on -failure to against railroad. action burden the defendant was entitled' to In action motorist charge. Rush, supra; L. & N. v. affirmative against railroad, plain- refusal of Heidtmuellei-, B. & N. v. tiff was con- S., G. Snider tributing stopping, looking, to accident listening crossing track, the uncontradicted held not re- Digests in all other cases see same <S=»For *2 ALABAMA REPORTS 216 150 not discover the the front the tions road car the tant from the could not see the train that he negligence to embrace initial tory N. v. ham. The misleading charges. the imately for the the ants. The as the did not tempting cause the first fendant. The time, Thirty-Second mobile Miles v. Charge gence, subsequent Harris v. 962, Ins. Co. w. Ala. 83, and inferences to skillful tonness on the shows the Fowler, being injuries sion, covery Southern S. F. I. Tinder the count Altman, BROWN, the defendant’s servants first second appellee. misleading 87 So. 837. The trainmen- or that 434, 65 So. 946. Whether the 14 Oliver’s on a It is admitted at the intersection of First avenue and handled Heidtmueller, of there is evidence jury. Thompson engineers L. R. A. of 22 was ascribing caused So. 19 received rail, 68 So. constituting N., wheels Hines, 100 So. 338. pleas can be attributed Taylor Koenig, Birmingham, engineer grade crossing, count negligence complaint Moog, Ala. plaintiff’s peril, J. This is an action cars 441; path 394; cross looked once C. & Garage of by street after the collision occurred 313; the were not pleaded the approach App. 163, ascribes -205 Ala. Allen (N. subsequent negligence the by C. & look and be drawn therefrom make the lead St. Gulf, switching it the did all of G. v. of the defendant’s stop his the charging simple negli- Miles place S.) Ala. consists of L., is not error to refuse cated on the on account of County Parker, Saxon v. C. of testimony Kronenberg, the be had on Lowe, vision; M. & N. R. v. automobile discovery plaintiff the train Charges the refused. Phcenix could not see the street Fincher, was for between support plaintiff’s short, v. about 75 feet dis M. & 211 Ala. car was then in listen before at to the defendant. to the city things ,in Porter, of is for the crew of the de- Hines, no plaintiff prox- and contribu- such 56 Am. 87 So. 837. tracks, direction of that he two O., and a rail- eight 139, introduced negligence tended to 7 and 11 lead ear after dis- the rear the place Birming- an auto- the proof obstruc consent. 205 Ala. cedent reached .a colli- sort as counts, G., 44 So. peril; until wan- serv- jury. L. cars, Rep. day- Ala. Ala. 191. ositions of 211 the foreman from one Co. 192 he he of to such v. (cid:127) 'cleared mony two blocks from the lision with dence as to the plaintiff’s peril until it reached the tinued its course without observed the en shows, tion to observe the bile driven Barnes show that crossing engaged flagging without influence in the gine. The defendant’s evidence tended to- gineer the governed by signals conflict with proaching train, The evidence shows that brakeman, gaged gineer, 1006; 133 The train persons was ceive should have been guilty ing road had the locomotive of ately sions the rear doubt The [2] neither the Ga. flagman, Johnson, v. stopped . tracks, proximity of The is viewed in the his Jones, positions by Hines v. his or at least of simple the operating brakeman, door back. through the switching, in the movement of the injury, show that there was no Barnes nor the consisted of end of the Barnes, place the the after Co. v. from their collision. he would have discovered the of and approach court, fourth offered traffic, movement such movement in train, of Barnes and and under applicable nature equipped and looked the given. Foshee, the brakeman who of the the his transmit the foreman of the in him that it collided with tends to not discovered in approach top determining and consisted of the en foreman, 22- the defendant It is not a matter left opening cannot discovery transmitted to him was at his Johnson crossing; the Johnson and Barnes- position light and, train, eight fifth car from the en asserted correct automobile before and listened immedi respective positions, of crossed the the of the train. of the train crossing; on the contact of the checking 80 So. the giving signals the the to the when this of the them to recover automobile driv- cars it is if, the Ala. Ala. of the automo if the lead car this conflict is was in a repeated Johnson, over the do so in came in col- place 44; the air part switch and attached to being one train, clear that' top peril,' for,, other contribut C. L. for ante that flagman. viaduct,, plaintiff time to- the en Central respect brakes. it con- waá he was on the- of the- of the- While speed to re testi- crew, posi from they deci they that rail evi- the-. Ry. the- the ap en lo by in it condition of circumstances one or peril matter of promptly collision; ern 534; 408, stances, L. R. son, man number of automobiles were Parker, 211 Ala. to show that the cars attached ed to Farmers’ First ties, torney refusal of such were directions, tion errors versed. should not ment on the charge 22, the unnumbered train word priate that the L. & R. R. Co. v. application criticism Reversed [3] The evidence shows that ANDERgON, Under [5] Counsel for question R. Co. v. hour, 12 S. THOMAg, essential to establish preceding N. pushed across the avenue Grand A. will avenue at “believe,” A. pointed term that on both, General, time to jury must the decisions of this court reversible (N. S.) question Young, G. S. & Merchants’ Bank lookout Ct. and that and some So. 654. “did their best 531; expressing Trunk original submission. not which would have Harrison, injuries. Birmingham be pointed out, surrounding them, R. Co. v. JX, G. S. while as some of the evidence tend a much used and have charges asserting that, rapid traffic, charges. Conway v. Robin it cannot be O. rehearing, point predicated respect, appellee, on Ex occasion of the accident be to those concur. the failure to J., wajntonness was for the and, under the authori Young, L. Ed. R. R. *3 discover given the correct and parte rate of out flagman Co. at the 100 So. Oliver’s 16, 18, and 80MERVILLE Guest, defendant, under accident,” an issue of fact or in their brief State briefs and supra. For the traveling Ives, speed, affirmed as time, warning, their honest Hollind, must be re leading L. N. ex Guest, as satisfied” County of convic act 144 U. S. foreman, giving HAWES' out uses the and the refused. & R. circum in both rel. or tended South engine appro along miles more caus argu flag Ga- declarations At up as is ; STATE v. ler et reversible rage belief of 2. Criminal erred in way tonness or giving the real issues fendant but also with its unconditionally not parted of the issue of initial fendant 3. Witnesses fusal of instruction prosecution paid to general may wise, to, 5. Criminal dicate dicates under count for hearsay court erred in tell excluded where tarily larceny ership. competent swer, though trine. tion to face bezzlement was as it appeared plaining asked to tell objection ly paid Application Larceny Criminal but Where Where Where issue involves intent with which de- Where 92 So. 264. deals HAWES Charge We al. v. irrelevant or of this illegal opposing opposing Lowe, takes and holds or so broad parted well be irrelevant refusing charge verdict of acquit what he knew about case did not responsive general are still to defendant error. Walls possession, question propounded with injured general law might <&wkey;>13 verdict money paid evidence, poss'ession explanatory 11 was without larceny <®=>236(5) answer. overruled. v. STATE. is i&wkey;l vested in with both nothing larceny or 'affected the intent, overruling party party larceny money voluntarily <&wkey;4l3(2) <&wkey;693 properly excluded if general. be question the ease answer. larceny party that’jury answer 173(3) illegal what he knew about case, —Defendant made of such appeared though its and its reversible error. opinion cannot have it has no would possession on face of under him 7. This v. Decatur ownership, defendant, latter was Realty Co., scope possession not indicates answer on —Where money objection embezzlement, asking possession, could not convict reversible money hearsay larceny self-serving, illegal have is refusal was money) the elimination Div. right verbal Declarations, to witnesses so one who be not charge in no witness was answer. paid question in- nothing illegal. voluntarily general in witness to of instruc- to have it illegal an- the court Fertilizer simplified voluntari- responses as other- property, excluded, made to act objected So. 761) to de- volun- wan made own- on a face, doc- Ty em- ex- re- on <§s»For other cases see same Post, p. 495. in-all Digests