Central of Georgia Railway Co. v. Martin

138 Ala. 531 | Ala. | 1903

McCLELLAN, C. J.

Each count of the complaint shows that the Southern Railway Company and the Central of Georgia Railway Company were using, and operating their respective trains on, the line of track upon which the collision occurred in common. This fact, in and of itself, imposed a duty of watchfulness and care upon each of said companies toward the other in the conservation of the safety of the trains and employes of the other, and liability upon each for failing to discharge this duty whereby injuries- should be inflicted upon the property of the other or upon the persons of the other’s employes. The complaint is not open to the objection taken by the demurrer, that it fails to show that defendant owed any duty of care toward the plaintiff, an engineer operating a train of the Southern Railway Company, over this track so in the common use of both companies.

That the complaint is also sufficient in its averment of negligence on the part of the defendant, very general though that averment be, many decisions of this court establish.

It Aims the duty of the employes of the defendant company, in chargé of its train, with which the Southern train, of which plaintiff Avas.the engineer, collided, to have that train out of the Avay of the Southern train or to give seasonable notice of its position of danger toward the other train on the common track. The plaintiff, in the absence of knowledge or notice to the contrary, had a. right to assume that this duty had been discharged, and to drive his engine upon that presumption. He Avas not bound to have and keep his engine so in hand, and running at such a rate of speed as at all times to be able to stop it short of collision with another train, Avhich he had no reason to believe was there at all in a position to be collided with. The rule Avhich prevails as to stock, does not obtain as to human beings, under a duty to keep out of the AAray, or give notice of their presence, and capable of discharging that duty, or as to trains and the like under the control of human beings, under the duty and capable of keeping obstructions out of the Avay, or of giving seasonable Avarning of their presence upon the track. The 4th plea, therefore, presented no defense to the action, and the demurrer to it Avas properly sustained.

The statutory requirements that engineers shall give signals on approaching public road crossings, and at short intervals on entering into and Avhile passing through villages, towns and cities, and municipal regulations of the speed of trains AAdthin the limits of towns, cities and villages, proceed upon'the assumption of a likelihood that persons may be upon the track at such crossings, and in toAvns, cities and villages, and Avas intended in the one instance to give them Avarning of the approach of trains, so that they may get out of the Avay, and in the other to require such Ioav rate of speed, as that they may have time and opportunity to act upon the Avarning. All these provisions are intended, in other words, to conserve the safety of the public, the people having the right and likely to be on the railAvay; and the duties which, these statutes and ordinances impose upon trainmen, are duties which the railAvay companies OAve to such people. Trains operated on the same track are no more, if as much, exposed to collisions with other trains at public road crossings in the country and at street crossings and other places in town, than at any other point along the line. It is common knowledge that the requirements under consideration are not relied upon to secure immunity from such collisions, and that other and entirely different and distinct precautions are necessary and universally provided to that end. Everybody knows, for example, that all trains upon the same main line are operated to the avoidance of collisions with other trains, by orders and signals given, for the most part by a central and higher authority, directly t.o trainmen, in respect to the movements of their respective trains, and not in any degree by these statutory signals and requirements as to speed at certain places, the duty to give and maintain which, is imposed for the different purpose of conserving the safety of the public. And it is of no consequence that two railway companies operated their trains over the same track by agreement between themselves. The dangers of collision between their respective trains are of the same nature as the dangers in respect of different trains of one company, and the means to avoid these dangers and prevent collisions are the same. In the one case as in the other these means are other and distinct from the ringing of the bell, etc., at public-road crossings, and while passing into and through municipalities and the maintenance of a given rate of speed in towns. These means are not the subject of legislative provisions. They are adopted by the railways themselves and employed by them to prevent collisions and consequent lpss of life and property — the lives of their passengers and employes and their own property and that which they transport for others. The only statutory provision looking to the prevention of collisions is that embraced in section 8441 of the Code, imposing certain duties on trainmen at railroad crossings. It is upon these considerations that we rest the conclusion before indicated, that neither the requirements of section 3440 of the Code nor of municipal ordinances as to the rate of speed of trains impose any duty on trainmen toward other trains on the same line or to the employes upon such other trains looking to the avoidance of train collisions; and it follows that the negligence of an engineer to give the signal of approach required by section 3440, on entering, and while passing through a town, and his violation of a municipal ordinance limiting the speed of trains in the town, could neither be made the basis of an action against his company for the result of a collision with the train of another company on the same track, nor afford the defense of contributory negligence against his action for personal injuries sustained by him in such a collision, due to the negligence of the trainmen on the other train in leaving their train at an unusual place on the track and failing to give proper warning of its presence to him. The engineer’s duty under the statute and the ordinance were not owed to the other company or their trainmen, and his negligent failure to perform them cannot afford such company a cause of action nor a ground of defeuse. Under this view of the law, pleas 5, 8 and 9 were correctly held to be bad on demurrer. — Foster v. Suroke, 41 Mo. App. 137; O'Donnell v. Railroad Co., 6 R. I. 211; Beehler v. Daniels, 19 R. I. 49; Hamilton v. Desk Co., 78 Minn. 3; Morrassey v. American Glucose Co., 11 N. Y. Supp. 688; Smith v. Tripp, 13 R. I. 152; N. C. & St. L. Railroad Co. v. Hembree, 85 Ala. 481; L. & N. R. R. Co. v. Markee, 103 Ala. 160; L. & N. R. R. Co. v. Hall, 87 Ala. 708; A. G. S. R. R. Co. v. Hawk, 72 Ala. 112; Gilson v. Deleware & Hudson Coal Co., 36 Am. St. Rep. 802 and notes.

Other objections taken by the demurrers to these pleas, or to some of them, will not be considered. They were not intended to present and they-make no pretence of presenting any defense of contributory negligence apart from the statute and the town ordinance. The only duty of care they attempt to allege is that supposed to be imposed by the statutory and municipal regulations. These regulations imposing no duties on the engineer toward the defendant, the pleas present no defense to this action.

■ The complainant counted on defendant’s negligence in stopping and allowing its train to be, without warning of its positiou, where it was run into by plaintiff’s engine, in a general way. The general issue was pleaded. Under this it was proper for plaintiff to show it was the duty of defendant’s trainmen to send back a ■flagman to give such warning to other approaching trains and testimony of a custom on well regulated railroads to do this was competent as going to establish such' duty. The fact that a special replication to special plea three, averred a rule of both the companies using this track to send back a flagman under the circumstances there existing, and a negligent violation of that rule by the defendant’s servants, and ascribed the collision to their negligence, did not operate to confine the inquiry of negligence vel non to the issue presented by the replication. It. was still open to the plaintiff to prove proximate negligence on the part of the defendant apart from the mile and its non-observance.

If it be conceded that there was no proof that rule 99 of the Southern Bailway was in use by the defendant, when the rule was admitted in evidence, and that, therefore, the court erred in admitting it when offered, the defendant can taken nothing thereby, for the reason that the error was cured, or rendered innocuous, by the subsequently adduced testimony of Maloney going directly to establish the fact that the rule applied and obtained at the time and place and the circumstances attending the stopping of defendant’s train at the point where it was run into by plaintiff’s engine.

Assuming that evidence of knowledge on the part of those in charge of defendant's train, that they were on the schedule time of plaintiff’s train, was competent as accentuating the duty that was upon them to protect both trains from collision and as aggravating their fault in not discharging their duty, the trial court yet erred in overruling defendant’s objection to the question propounded to the witness White, viz.: “Would they have ltnown that?” This obviously called for a mere conclusion of the witness, and his affirmative response was a conclusion, pure and simple. It could not be other than a conclusion, indeed, since the witness could not know as a fact what defendant’s trainmen would know.— Green v. State, 96 Ala. 29; Bailey v. State, 107 Ala. 151; Reeves v. State, 96 Ala. 33; Whetstone v. Bank, 9 Ala. 875, 886; Baldwin v. Walker, 94 Ala. 514. We are unable to affirm that this error did not prejudice the defendant, and for that, the judgment of the city court must be reversed. The cause will be remanded.

Reversed and remanded.