112 So. 148 | Ala. | 1927
If the jury believed plaintiff's testimony that defendant's train approached and went upon the crossing without any warning signals, and without any light visible on the cars, they could have properly found that defendant was guilty of simple negligence in handling its train on the occasion of this collision, giving to plaintiff a cause of action. Grauer v. A. G. S. R. R. Co.,
Very clearly, the evidence does not show that the trainmen were guilty of any negligence after the discovery of plaintiff's peril. The train was moving at a speed of about 4 feet a second, and a stop within 25 or 30 feet after plaintiff was sighted — that is, within six or seven seconds — permits no inference of culpability in that regard, as against the undisputed testimony of the trainmen that they took the promptest and most effective action available to prevent the collision. Nor can any inference of wantonness arise from the mere fact that the train was backed towards and onto the crossing at the very slow speed of 2 or 3 miles an hour, though without end lights, or flagging ahead, or warning signals from the engine, even though the crossing was a constantly used public highway. Bailey v. South Ry. Co.,
It results that the propriety of giving the general affirmative charge for defendant depends upon defendant's showing by undisputed evidence that plaintiff was guilty of contributory negligence, as a matter of law, on the occasion of his injury; and it is to be presumed that the charge was given on that theory of the evidence.
Taking plaintiff's own testimony, in connection, of course, with all the other evidence, defendant's view of it is that contributory negligence was shown as a conclusion of law, (1) because plaintiff stopped his car 7 or 8 feet from the railroad track, and did not thereafter look or listen for trains while covering that distance up to the track; and (2) in any event,looking or listening, he was bound to have seen or heard this train after he stopped his car, and before he went on the track.
1. We are unable to say, as a matter of law, that plaintiff could have prudently driven his car, before stopping for the crossing, to a point nearer than 7 or 8 feet to the railroad track; or that, in traveling that distance to the track after starting his car, he could have seen or heard the approaching train any better than he could before starting.
2. We are also unable to say, as a matter of law, that, after stopping, plaintiff must have seen or heard, and did actually see or hear, the train, if in fact he then looked and listened.
There was evidence that the garage light shone over the crossing, but there was *579 nothing to show with certainty that an ordinary observer, from plaintiff's position, must have seen a train without lights through the existing darkness.
So, also, there was evidence that the train was "making noise," but nothing to show how much noise it was making; and we cannot judicially know, as we would of an ordinary train of cars running at high or even very ordinary speed, that this train of four box cars, pushed slowly along at a speed of 2 or 3 miles an hour, must have made enough noise to be heard by any one who stopped and listened.
In either of the above cases it would be difficult to escape the inference, as a matter of fact, that plaintiff would have both seen and heard this train if he had stopped and looked and listened; but the inference would be one of fact merely for the jury to draw, and not an imperative conclusion of law to be declared by the court.
These considerations lead to the conclusion that the issue of contributory negligence was one of fact which should have been submitted to the jury, and that the general affirmative charge for the defendant was erroneously given.
It results that the judgment must be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
