Central of Georgia Railway Co. v. Foshee

125 Ala. 199 | Ala. | 1899

McCLELLAN, C. J.

That it is the duty of a person approaching the track of a railway for the purpose of crossing it to stop, and to look, and to listen if need be, that is if the exercise of the sense of sight does not suffice to fully disclose the situation for approaching trains, and that the omission of this duty followed by injury in collision with a train, locomotive, or car while attempting thus heedlessly to cross over the track, is as matter of law negligence on the part of the traveler so contributing to the result as to defeat his action counting on the injury as having been produced by the simple negligence of tlie railway company or its employes, are propositions of sucli universal acceptance, of such frequent declaration by this court 'and of such obvious soundness that we shall neither discuss them nor cite authorities in support of them.

It is equally clear on principle and authority that this duty must be performed at such time and place with reference to the particular situation in each case as will enable the traveler to accomplish the purpose the law has in view in its imposition upon him. He must stop so near to the track and his survey by sight and sound must ■so 'immediately precede liis effort to cross over it as to preclude the injection of an element of danger from approaching trains into the situation between the time he stopped, looked and listened and his attempt to proceed across the track. If he stops so far from the railway as that a train which could not be seen from that point could and does reach the crossing by the time he has traversed the intervening distance, and gotten on the track, he negligently contributes to the resulting collision and injury. And the same is true if, though he stop at the track, he lingers thereafter looking and listening and delays crossing until a train not in sight or hearing when he stopped, looked and listened has come meantime upon the scene and collides Avith him Avhen he does attempt to cross.

It is also thoroughly well settled that if such traveler sees a train approaching, misjudges its speed, or, for any reason, his own ability to cross before it reaches the point of crossing, and makes the attempt and is stricken and injured, he is likewise guilty of negligence, and cannot recover for the negligence of, or imputable to, the company unless its agents were Avanting in due care to conserve his safety after they became aware of his peril, that is, either of his presence on the track or his purpose, indicated by his movements, to go upon the track in front of the train.

All the foregoing doctrines have application to this case. Plaintiffs’ intestate went upon the track of defendant’s railway in front of a rapidly approaching locomotive drawing a train of cars, in an attempt to cross over the track. She was there stricken by the locomotive and killed. There is evidence from which it might be inferred that she did not see or hear the train, and, without stopping to look and listen at the proper time and place, or at all for that matter, went upon the track in ignorance of its approach. That by stopping and looking and listening she could have ascertained that the train was approaching and was dangerously near is entirely clear on the evidence. Indeed it is not possible to conceive that any foot traveler need or could with the proper use of his senses ever go upon a railway in ignorance of the approach of a train sufficiently near to strike him before he crosses over it. No curve even in a deep cut that a train can be operated upon can be so acute as to deprive him of the opportunity while standing beside the track to refrain from attempting to cross in front of it. On this aspect of the evidence, the intestate was as matter of law unquestionably guilty of negligence in attempting to cross the track without stopping and looking and listening for the train that killed her. There was other evidence in the case to the effect that the intestate did stop and did look before going on the track and did see the train approaching, and that thereupon with full knowledge of its approach she attempted to cross in front of it, and so was run against and killed. If these were the facts she was equally guilty of negligence. It is probable that this last phase of the evidence presents the real facts. But it doesn’t matter whether the one or the other phase is the true one. The whole evidence without the slightest conflict shows that she either went upon the track without stopping to look and listen, or that she did stop, and look when the train was in plain view and then went on the track, in an effort to cross it, in front of the nearly and rapidly approaching locomotive and train. And upon either phase of the evidence she was guilty as matter of law of negligence in attempting to cross the track at that time and place.

Nor was she in any degree relieved from the imputation of negligence by other alleged circumstances attending her attempt to cross, which counsel for appellees insist bewildered and confused her to such an extent that it was open for the jury to find that she acted with all the care required of her in view of the panic under which she labored. There is a doctrine fully approved by this court to the general effect that where the party injured ivas suddenly placed by the wrong of the defendant in a position of extreme and imminent peril necessitating to his extrication quick decision and action on his part he will not be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situation and to choose the best means of escaping the peril; or, in other words, adopting a formulation of this principle which has been approved by this court, where by the negligence of the defendant, or those for whom he is responsible, the plaintiff has been suddenly placed in a position of extreme peril, and thereupon does an act which under the circumstances known to him he might reasonably think proper, but which' those who have a knowledge of all the facts, and time to consider them, are able to see was not in fact the best, the defendant cannot insist that under the circumstances the plaintiff has been guilty of negligence. “Perfect presence of mind, accurate judgment, and promptitude under all circumstances are not to be expected. You have no right to expect men to be something more than ordinary men.” — Woodward Iron Co. v. Andrews, 114 Ala. 243, 257-9. But this doctrine can have no application here. The intestate when she started upon the act which cost her her life was not in a position of peril, extreme or otherwise. She was, to the contrary, in an absolutely safe position. And not only was it safe in point of fact, but it was obviously so to the perceptions and comprehension of any ordinary man. Any ordinary man or woman standing as she was by the side of the track and out of the way of the approaching locomotive when she saw the train (and of course if she did not see it this doctrine could not apply in any event) would have known that that was a place of safety and would have had no hesitation or doubt as to the propriety of remaining there. And courts in these matters deal only with ordinary people. That is the sort of man which constitutes the standard by which all men and women are to lie judged on the question of negligence vol non. We “have no right to expect men to be something more than ordinary men,” but must expect them to be ordinary men, and their actions must in all cases be adjudged upon the assumption that they are ordinary men. The law takes no account of personal idiosyncracies and peculiarities which produce panic without cause and thus lead to negligent and rash action. The test of due care in a given instance is not what the individual involved in that instance would always do under tlio circumstances, but what a man of ordinary care and prudence would do under the circumstances, And in this case, as no man of ordinary care and prudence would have attempted to rush from a place of safety across the track in front of this locomotive, the act must be held negligent and rash on the part of the intestate. It is of no consequence that she was panic stricken and hence thought she ivas in danger and that that was her only means of escape. She must have been in danger — which she was not — 'and she must have reasonably- thought the course she took was the best — -which she could not have done since there was no ground for so thinking. These plaintiffs cannot hold the defendant responsible for the results of her unwarranted panic.

Plaintiffs’ intestate having thus been guilty of negligence in going upon defendant’s track, that negligence is to be held a contributing cause to her death along with any alleged and proved antecedent negligence of the defendant’s employes, so as to bar a recovery by the plaintiffs for such negligence. There are three counts in the complaint which charge such antecedent neglience on the part o.f defendant. The second count avers as the cause of the injury the failure of defendant’s employs “to blow the whistle or ring the bell át least one fourth of a mile before reaching said public street crossing in the town of Goodwater, Alabama, and to continue to blow the whistle or ring the bell at short intervals until said engine and train of cars passed such crossing.” The 8d count ascribes the disaster to the negligence of defendant’s employés in running the train at such a great rate of speed in approaching the crossing as that they were unable to stop it before reaching the crossing after they had arrived at a point from which .they could first see an obstruction or person on the track at the crossing. And the eighth count alleges as the cause of intestate’s death that the defendant’s agents negligently and wantonly ran the engine and train of cars within the corporate limits of the town of Goodwater at a. greater rate of speed than six miles per hour in violation of an ordinance of the municipality limiting the speed of trains to that rate. There was evidence tending to prove the negligence laid in each of these counts; but, of course, the contributory negligence of the intestate was a complete defense to each.of them, and that being shown by the uncontroverted evidence the court should have given the affirmative charge with the hypothesis which was requested by the defendant as to each of them. The trial court erred also in those parts of its general charge, which relate to this matter.

There were demurrers to the 2d and 3d counts, but as it seems very improbable, to say the least, that.those counts will cut any figure in the case hereafter we deem it unnecessary to consider the demurrers. For the same reason we shall pretermit consideration of the validity and admissibility in evidence as offered of the ordinance set up in the 8th count.

The first count of the complainant avers that intestate was killed at a public street crossing in the town .of Goodwater. This averment shows that defendant Avas under a duty to keep a lookout for her at the time and place of the collision and to exercise care in conseiwation of her safety. The averment of negligence on the part of defendant’s employés is very general, but, the duty of care being shown, it is sufficient. — Armstrong v. Montgomery St. R’y Co., 123 Ala. 233. It is sufficiently broad to cover the negligence of the engineer in failing to use all the means at his command after discovering the peril of the intestate to stop his train before reaching her, or to lessen its speed so as to afford her time and opportunity to get off the track before the locomotive reached the point at which she Avas attempting to cross it; and this count is to be taken as averring such negligence. If there was such negligence and if it had a causal connection with the result complained of, the negligence of the intestate in going and being upon the track would he no defense to the action: Her negligence would not be the cause of the injury nor contributory thereto, but merely the cause of a condition upon which the negligence of the engineer in failing to use all means in his power to avoid the injury after becoming aware of her peril, operated to and as the sole cause of her death. — Tanner’s Extrs. v. Railroad Co., 60 Ala. 621; Louisville & Nashville Railroad Co. v. Brown, 121 Ala. 221; Central of Georgia R’y Co. v. Lamb, 124 Ala. 172.

We think there was evidence of such negligence on the part of the engineer, and that there was also evidence tending to show that it caused the death of plaintiff’s intestate. The engineer saw the peril of the woman in time to put on the emergency air brake and to reverse his engine and to sound the alarm whistle before his engine reached the crossing. He did in fact sound the alarm and put on the emergency air brakes. But he did not reverse his engine. He testified in this connection as follows : “I know of nothing else that could have been done that would have prevented a collision. What I did is regarded as the most effective way of stopping a train;there is nothing to do but apply the emergency toakes; that is all that impossible to do with an air-brake train; we were using the improved, quick action, automatic air 'brakes. * * * * * * * * * We don’t reverse our engine with the present appliances; that is played out.” The fireman testified as follows in this 'connection. “Besides sounding the alarm whistle, the engineer applied the emergency. He did not reverse his engine. I don’t think a skillful engineer would reverse his engine under such circumstances. The engines have appliances for reversing them; they can be reversed; you do not stop a train quicker by reversing the engine. It can be used in case yonr 'air refuses to work, but the air brake is put there purposely to stop the train with. In some cases when you reverse the engine it turns the wheels backwards, and in others it does not. If you make an application of your air and reverse your engine and the train moving, any railroad man with any experience will tell you that it will lock the wheels not only of the engine but the train being equipped with air brakes, will lock the wheels and the wlioie train will slip; when the air brake is applied it does not lock the wheels so as to make them slide, they continue to roll in the same direction; if the air is properly adjudged (?) it does not stop any of the Avheels from rolling, but if the engine is reversed it stops all the wheels. If you reverse your engine and apply your brakes it Avill lock the wheels in all instances, and it will slip. If you don’t apply the brakes but reverse the engine, in some cases the Avheels Avill slip then; I have known it to turn the wheel's back; it does not come to a very short stop then. According to the best of my judgment the shortest Avay to stop a train is to apply the air.” It is, we take it,- common knowledge that in the absence of extraneous force the driving Avheels of an engine Avill turn to the front or to the rear -as the lever is set forAArard or backward, and with equal force and power in either direction. If an engine in motion and drawing a train does not on being reArersed turn its wheel® backward, it is not because the whole force of the machine is not being fully exerted to the rear but because the force of its OAvn and the train’s forward momentum is equal to or greater than the power of the engine, and though the driving Avheels in such case do not revolve •backwards, the full power of the engine is spent against and in reduction of the momentum through the bite they have upon the rails, being stationary with the force of the steam holding them steadily to a backward motion, AAdiich they Avill visibly assume as soon as the momentum is reduced to a point AAdiere it will not overcome the bite of the drivers on the rails. Up to this point, if the drivers remain -stationary, that is do not revolve backwards, they must of course slide on and along the rails; and the power necessary to push the inert weight of the engine along the rails is taken from the power of the momentum and goes of course to a reduction of the momentum and thus helps to stop the train. If the drivers do revolve backwards though the train continue to move forward, it is because the momentum overcomes the hold they have on the rails and they slip; but so much of the force of momentum as is expended to overcome the hold of the drivers on the rails is a force exerted in reduction of the momentum and to the stopping of the train. So in any case it would seem to be common knowledge that the reversing of an engine would operate directly and powerfully to overcome its and the cars momentum and to stop the train, and this whether the wheels of the cars be locked or not or heavily clamped by brakes, though not locked or not. At least we may say, as of common knowledge, that as between a train with all the wheels of the cars and engine locked, and one with the wheels of the cars impeded by the brakes, but not locked, and the wheels of the engine revolving freely, the momentum of the former would be much more quickly overcome and its speed much more readily reduced; or, in other words, that a train in motion will be sent further and faster on wheels which, though some of them are impeded by the brakes, continue to revolve than on wheels all of which are locked and rigid. This is but another 'way of saying that a train can be rolled along its track easier and faster and further than it can'be elided on its rails; and if this were not so, we suppose railway companies would be quick to discard wheels and provide skates. The fireman, as we have seen, testified that the application of the air brakes impeded the wheels of the cars, but did not stop their revolutions, but that if the engine was reversed át the same time, the effect was to lock all the wheels on the cars and on the engine and sometimes even to cause the driving Avheels of the engine to revolve backwards. On this testimony, taken in connection with the other testimony of this Avitness and the testimony of the engineer, set out above, it was at least a question for the jury whether the engineer Avas not guilty of negligence in failing to reverse his engine after he became aAvare of intestate’s peril; and it may be that it could be declared by the court as a matter of common knowledge that the effect of reversing the engine of a train in motion is to impede its progress, overcome its momentum, reduce its speed and bring it to a standstill. Certain it is that in all our experience in dealing with hundreds of similar cases, it has never before, been suggested that reversing the engine is not an approved and powerful means of stopping, or reducing the speed of trains; and it is so recognized by the statute law of the State. — -Code, § 3140. We do not know whether this train could have been stopped by reversing the engine before it reached the crossing or not. Probably not. ' But that its speed could have by that additional means been reduced further than it was by the application of the brakes, there ivas room for the jury to findand if it had been further reduced to the extent of delaying its approach to the crossing only a second or two, it is a fair conclusion from the evidence that the intestate would have ■ escaped, since the proof is that she was in the very act of clearing tire track on the other side from her entry upon it when she was stricken. On this state of case the court properly refused to give the affirmative charge for defendant on the first count and to give other charges to the effect that the negligence of the intestate was a defense to all the counts of the complaint except those charging willfulness or wantonness on the part of defendant’s employes.

Count five of the original complaint was intended to charge that the defendant’s employes wantonly killed Mrs. Arthur, plaintiffs’ intestate. It was and is insisted for the defendant that it charged only negligence. We will assume that this contention of defendant was tenable, and that said count did not charge wantonness or willfulness: This was the only count in the original complaint in which any attempt to aver wantonness or willfulness was made. So that we are assuming that the original complaint counted on mere negligence only. Count five was afterwards amended and as amended it was held to be a good count for wantonness by the trial court. And the 6th count was added 'by amendment, and that confessedly is a good count for wantonness or willfulness. Defendant objected to these amendment on the ground that they introduced an entirely new cause of action. It was said by Justice Coleman, in Louisville & Nashville Railroad Co. v. Markee, 103 Ala. 160, 171, that “a declaration or complaint may in one count aver simple negligence, in another willful and intentional wrong; * * * or, if the complaint charged either the one or the other, and the proof was such as to require an amendment of the pleadings this should be allowedor, in other words that to a complaint charging simple negligence only a count may be added charging willfulness or wantonness, or vice versa. It is said that this was a dictum in that case and should not be followed. Whether dictum or not it is a sound statement of the law, and must be followed. An amendment to be objectionable on the ground relied upon by appellant must introduce an entirely new cause of action. An entirely new cause of action is not introduced by an amendment which count's upon the same transaction as that counted upon in the original complaint. It is on this principle that the common counts may be added to a complaint on a promissory note unless they are intended to bring forward a different and distinct obligation to pay. — Mahan v. Smitherman, 71 Ala. 563. On the other hand, when the original complaint contains the common count on an account stated, and also claims the same amount as due by verified itemized account, etc. and the verified account offered in evidence contains charges on account of these promissory notes made to plaintiff by defendant, a count on the notes may be added by amendment. — Oden v. Bonner, 93 Ala. 393. So a declaration in trover may be amended 'by adding counts in case, the damages sought to be-recovered under each count being for the loss to plaintiff of the same property. — Elmore v. Simon & Bro., 67 Ala. 526. And a complaint on a written policy of insurance may be amended by adding a count on a verbal contract to insure it, etc., both the alleged policy and the alleged verbal contract relating to the same risk.- — Insurance Co. v. DeJarnett, 111 Ala. 248. To -a declaration in trespass against the sheriff an-cl the sureties on his official bond alleging a wrongful levy on plaintiff’s property under color of office, an amendment may be added setting out the bond and alleging its breach by the wrongful levy. — Albright v. Mills, 86 Ala. 324. So to a declaration against a railroad company for personal injuries alleging “that defendant’s train threw a cow from the track and against plaintiff, whereby plaintiff was greatly injured,” and that this ivas caused by the failure of the engineer to blow the whistle or ring the bell at short interval® while running within the limits of a town, and his failure to use all means in his power to stop the train, an amendment may be added alleging that the train was running at a reckless and unusual rate of speed and that the engineer failed to keep a lookout for obstructions on the track, whereby the injury was caused. — A. G. S. R. R. Co. v. Chapman, 83 Ala. 453. And it has been held (though we do not intend to here fully endorse the ruling) that where, in an action for libel, the libel declared on in the original complaint relates only to plaintiff’® solvency, an amendment may be allowed under the statute introducing another and distinct libel written and published at a different time, and touching the integrity and personal conduct of the plaintiff, without questioning his solvency, this court by Brickell, C, J., saying : “The amended complaint, by proper averments, introduces the libel given in evidence, purporting to have been written and published at a different time from the writing and publication of the libel described'in the original complaint; and the matter of it concerns and touches the integrity and the conduct of the plaintiff, without assailing or questioning his solvency. In the leading case of Crimm v. Crawford (29 Ala. 626), construing the present statute of amendments, it was said: ‘Under these statutes, we think there is no limit to the power of amending the allegations of a complaint, except that a party should not be allowed to depart in the complaint entirely from the process, or to substitute an entirely new cause of action, or to make an entire change of parties. Either of these things would be tantamount to the institution of a new suit, and would not be an .amend-merit of the old cause of action.’ This construction of the statute has since been observed; and following it, the amended complaint, though introducing a libel different in' substance, not of equivalent import or meaning with that averred in the original complaint, was properly allowed. The form of action is not changed, a cause of action entirely new is not introduced. A lihel of the plaintiff, in his trade and business as a merchant, written and published before the commencement of suit, addressed to the same parties, is the cause-of action averred in both complaints. The substance of the allegations is, however, changed; new matter is introduced, forming a new and independent cause Of action, which was not before the subject of pending suit, and of contestation between the parties. The allegations of the complaint are not simply varied to meet the phases in which the evidence may present the matter already in issue, so that there will be a correspondence between allegations and proof; but a libel, éssentially distinct and different, in* all its parts'and tendencies, from that described in the original complaint, is, for the first time, introduced by the amended complaint. While the cause of action remains a libel, written and published of and concerning the plaintiff, touching his character and credit as a merchant, there is á total departure from the subject of tlie lihel as averred in- the original complaint.” Mohr v. Lemle, 69 Ala. 180. It has also been several times ruled by this court that where the original complaint states no cause of action, an amended complaint stating a cause of action may be filed, (Simpson v. M. & C. R. R. Co., 66 Ala. 85; Louisville & Nashville Railroad Co. v. Wood, 105 Ala. 561), and upon this ruling it would seem that, other considerations aside, the counts for wantonness and willfulness were- properly allowed because an attempt was made in the original 5th count to aver wantonness and willfulness. Where the original complaint is founded on the sheriff’s official bond, and assigns as a breach the non-payment of a decree rendered against him as administrator by virtue of his office; an amendment by adding a count on the decree only without any reference to the bond, does not introduce a new cause of action. — Stringer v. Waters, 63 Ala. 361. To a declaration a note made by an executrix as such, a count may be added alleging an indebtedness of the testator in his lifetime, and thereupon the original count may be stricken. — Taylor v. Perry, 48 Ala. 240; Burch v. Taylor, 32 Ala. 26. These authorities serve to fully support the* proposition with which we began this discussion, viz.: that so long as counts added 'by amendment set up the same general transactions or occurrences upon which the/ original complaint relied for recovery -they do not intro j duce an entirely new cause of action and are not object tionable though the form of action may be changed by them as from trover to case, or vice versa, or from case to trespass, etc., etc.; and they further serve to differentiate the rule of amendments prescribed by the statute as construed by this court from the rule against departures in after pleading from the case made by the complaint. It is no objection to an amendment that, it works a departure from the original complaint within the meaning of the rule last referred to. The amendments under consideration in most of the cases referred to would have been vicious departures in pleading if the facts they introduced liad been replied to a plea to the original complaint, as, for instance, where the original complaint was upon a note and to a plea of non est factum the plaintiff had replied an assumpsit for work and labor, there would have been a clear departure from the original complaint, but it is undoubtedly the law tliat such assumpsit may be added by amendment to the complaint in a separate count. And so it is no argument against the right to add to a count for negligence counts for willfulness or wantnonnes, that willfulness or wantonness could not be replied to a plea of contributory negligence to a complaint charging negligence only. That the counts added in this case intended to charge willfulness or wantonness relate to the same occurrences in respect of which the original complaint charged negligence is entirely clear upon the face of the several counts, and that they were properly allowed as amendments to the original complaint we have no sort of doubt.

The gist of the amended 5th count is that defendant’^ employes recklessly and wantonly ran the train while approaching the crossing at such a high rate of speed that they could not stop it before reaching the crossing after they had attained a point of view two hundred yards away from which they could see a person on the track at the crossing if a person were there and that the user of the crossing was such that it was probable some person would be on it at the time such point of view was reached by the trainmen. We do not think this count charges wantonness against the defendant’s employes. Conceding, which is by no means clear, that it sufficiently avers the character of the crossing as being one ivliere people passed in such numbers and with such frequency a's that it was likely or probable persons would be on the track thére and exposed to collision with passing trains, it is not averred that the trainmen were aware of this state of facts, and without such knowledge on their part willfulness or wantonness in respect of persons so exposed cannot be imputed to the defendant. Moreover, thfe trainmen were under no duty to stop the train or to check its speed upon seeing a person on the track two hundred yards away at the crossing. The duty which the law does impose on them is to give signals of their approach so that persons on the track at crossings will be warned and get off before the train reaches them, and the train operatives have a right to assume that they will get off until it becomes apparent that they will not. A general averment that defendant’s employes wantonly or willfully ran the train against the intestate and killed her, without more, (which is the averment of the 6th count) is sufficient; but when to such general averment is added a statement- of the facts and these, while they may involve negligence, do not support the charge of wantonness or willfulness, the count is inadequate as one for wantonness and the like, and is bad as ene for negligence because of the inconsistency and repugnancy of its averments. — Memphis & Charleston Railroad Co. v. Martin, 117 Ala. 367. And surely, there being no duty on these trainmen to stop the train qr to check its speed on seeing a person on the track at the crossing two hundred yards away, and no necessity ordinarily for them to do so, it cannot be said that they were either negligent or wanton in running the train at such a rate that they could not stop it or check its speed between this point of view 'and the crossing. The 5th amended count was bad, we conclude, and the demurrer to it should have been sustained.

Moreover, its averments were not proved; there was no evidence tending to show that the train, at the speed it was running on this occasion, could not have been stopped before reaching the crossing, or its speed sufficiently checked to allow a person on the track at the crossing, when the train was two hundred yards away, to escape injury; and for this the affirmative charge should have been given for defendant on this count.

The affirmative charge asked by defendant on the 6th count, which does charge wantonness or intentional wrong producing intestate’s death was properly refused. We are not prepared to say there was no evidence adduced in support of this count. 1

Reversed and remanded.

Case Details

Case Name: Central of Georgia Railway Co. v. Foshee

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1899

Citation: 125 Ala. 199

Court Abbreviation: Ala.