96 So. 358 | Ala. | 1923
The suit is for damages to a truck caused by collision with defendant's engine at a street crossing.
Count 4 predicates liability on facts tending to show that defendant's servant so negligently operated the engine in question as to collide with the truck of plaintiff at the time and place indicated. In counts A and B liability is sought to be predicated upon the facts that defendant maintained a flagman at the crossing and at the time the accident occurred; that said flagman signaled plaintiff's driver to proceed to or upon the crossing, which signal plaintiff's driver relied upon, proceeded on the crossing where the collision occurred, and, as a proximate result of which plaintiff's property was damaged, for which the suit was brought.
To count 4 defendant filed pleas of the general issue and special pleas B, C, and D of contributory negligence for failure of the driver of the truck to stop, look, and listen before going upon the crossing. To counts A and B, in addition to the general issue and foregoing special pleas, defendant further pleaded specially that plaintiff's driver, operating the truck within the line and scope of his duties, negligently failed to exercise his senses of sight and hearing before going upon the crossing, and thereby contributed to his injury.
The only replications found in the record are filed of date 5/10/21, which we judicially know to have been the 10th day of May, 1921 (Sovereign Camp, W. O. W., v. Reed,
"Plaintiff's automobile was going east on Eslava street, a public street in the city of Mobile, Ala., and that just north of Eslava street and close to the track upon which said locomotive was approaching Eslava street, from the north, there was a cattle pen and small house which obstructed the view of a person approaching the said track on Eslava street in going east on Eslava street, so that such person could not see a locomotive approaching Eslava street from the north, and that by reason thereof the driver of the plaintiff's automobile could not see the approaching locomotive."
The demurrer to the replication was overruled (May 10, 1921). Thereafter defendant had leave of the court to file additional pleas on October 5, 1921, and the complaint was amended by adding count 4 (and 5), to which defendant replied with pleas of the general issue and the special pleas B, C, and D. Thereafter the complaint was amended by the addition of counts A and B, to which said pleas were refiled on January 13, 1922. The trial was had upon counts 4, A, and B, upon the general and special pleas stated, and to which no replication was filed.
Several assignments of error are predicated on rulings in the rejection and admission of evidence. Witness Powell testified that, as plaintiff's agent, he was driving the truck in question at the time of the collision; that there was a flagman "standing off" (near the crossing) talking to a lady, and when he blew the horn on his car, for signal, the flagman "motioned" him to "go ahead," and in response thereto he drove upon the track as soon as he received the signal from the flagman to "go ahead towards the river, the direction in which he was going." Witness then stated that he had theretofore made that crossing many times, and was asked: "Did you know whether it was customary to maintain a flagman there?" Defendant's objection to the question as immaterial and irrelevant was sustained, and plaintiff duly reserved an exception to this ruling. It is competent to show whether or not it was customary to maintain a flagman or watchman at a railroad crossing. B'ham Southern R. Co. v. Harrison,
On cross-examination Powell was asked, "You did not take the time or pains to look to see whether he had the go sign to you or the stop sign to you?" and replied, "I looked at it, but he waved it so quick I didn't see." Witness being then asked, "You didn't notice?" answered, "I could not tell, because he waved the board to go ahead, and I went ahead." The bill of exceptions recites that defendant moved to exclude the statement of the witness that "he waved the board to go ahead," which motion was granted, and plaintiff duly reserved an exception to this ruling. The court instructed the jury that this witness' conclusion that a certain signal meant to go ahead was not binding on them. This statement of fact by the witness, that "the flagman waved the board to go ahead," was not a mere conclusion, but was the statement of a collective fact that was permissible. Standard Cooperage Co. v. Dearman,
The defendant's witness Jenkins testified that he was its claim agent and was at the crossing on "the day of the collision, and * * * the morning of the trial"; that he went to the place of collision about an hour after the same had happened, and was familiar with the "lay of the tracks" at that point. Thereupon the witness was asked, *330 "Are you familiar with that situation down there, the lay of the tracks?" and answered, "Yes, sir," and testified that the tracks were the same at the time of the accident and immediately thereafter as at the time he "measured them." Witness was then asked, "Do you know what the distance was between the south-bound main line and the first track west of that?" Plaintiff's objection being overruled and due exception reserved, the witness answered:
"* * * It measures eight feet from rail to rail; that is, the west rail of the south-bound main and the east rail of what is known as the lead track."
There was no error in this. The witness, having shown a sufficient knowledge of the location and condition of the tracks in question, and the same not having been changed from the time of the accident to the time of the measurement, was, therefore, prepared to speak of the result of his observations of the conditions, locations, and measurements made by him immediately after the accident.
It is apparent that reversible error has intervened, unless the defendant was entitled to the general affirmative charge as to each count, and the rulings complained of could not have altered the result, even if they had been otherwise. Such is the rule where the error complained of is without injury or cannot in the remotest degree tend to produce a conflict or an adverse inference to a contrary conclusion. Travis v. A. G. S. R. Co.,
It is necessary that we ascertain whether or not the affirmative charge should have been given at defendant's request as to counts 4, A, and B. The gravamen of count 4 is:
"* * * On or about, to wit, the said 11th day of January, 1921, the defendant, through its servants, agents, and employees in charge of one of defendant's steam engines, and while acting within the scope of their duties as such servants, agents, or employees of the defendant, so negligently operated a steam engine, the property of the defendant, that it struck, ran upon, or against a motor truck, the property of the plaintiff, and which was being driven east on the said Eslava street by an agent, servant, or employee of the plaintiff who was then and there discharging his duties as such agent, servant, or employee of the plaintiff."
To this count were filed pleas of the general issue, and of contributory negligence — whether or not plaintiff's driver stopped, looked, and listened before he went upon the track. Under such theory of pleading, as to count 4, the alleged negligence of the flagman became immaterial, because liability thereunder was not predicated in the first instance (count 4) upon his negligence, nor was the act of the flagman at the crossing, inviting the plaintiff's driver to proceed, set up by way of confession and avoidance to pleas treated as answering the fourth count.
It is required that respective pleading must support the foregoing pleading of the pleader, and not make a departure therefrom. Ex parte Hines, Director General,
It is not, therefore, necessary to pass upon the specific question of error vel non in the giving of charges 6, 7, 12, 13, 15, 19, 25, and 26, since, if it be conceded the giving of these charges was erroneous, the defendant was entitled to the affirmative charge as to count 4, as we have indicated, and the giving of said charges (if error) was error without injury. It will be noted that said charges are restricted to count 4 specifically, or by its subject-matter. Travis v. A. G. S. R. Co.,
There was error in giving defendant's charge No. 9. It was positively erroneous, in placing the burden on every one passing the railroad crossing of knowing or ascertaining whether he who was acting as flagman thereat was so acting under a contract of employment with defendant, before such person was authorized to rely upon the signal given by such acting flagman. If a flagman had customarily been stationed and acted for defendant at that crossing, and the fact was known to the plaintiff's driver, or defendant had so long maintained the same to warn travelers of the approach of engines or trains and of the danger of attempting to cross, that travelers (including plaintiff's agent in question) have relied, and are accustomed to rely, thereon, in the exercise of due care, nothing of contradictory indication appearing, the failure of the company in that behalf would not wholly excuse the traveler approaching such crossing from the exercise of reasonable care and caution — such as would ordinarily be exercised by a careful and prudent man, under similar circumstances. Such knowledge of warnings or reliance thereon would "have the effect, in the case of a traveler meeting his death at such crossing [without such warning], to invoke the presumption that such traveler was in the exercise of reasonable care and caution immediately before and at the time of the collision, unless the other evidence should rebut that presumption." Birmingham Southern R. Co. v. Harrison,
Counts A and B predicate liability on the fact that a flagman stationed at the crossing negligently signaled plaintiff's agent to proceed thereon, who, relying on such signal, went upon the crossing, and received the injury complained of. To said counts, beside the general issue, defendant pleaded specially contributory negligence, as we have indicated. Whether or not these pleas are properly interposed to said counts is not now for consideration, since appropriate demurrers were not interposed.
Appellant urges that, on account of the flagman inviting plaintiff's truck driver across the track, he was exculpated from the duty imposed by the general rule of "stop, look, and listen." It will be observed of the special pleas that the duty to stop, look, and listen is not set up, but that the driver failed to stop, look, and listen. Under the decisions of this court, where a flagman, stationed at a crossing, invites a person to proceed across a railroad track, the latter is under no duty to stop, look, and listen before obeying such invitation or signal to cross. Birmingham Southern R. Co. v. Harrison, supra.
In Central of Ga. Ry. Co. v. Hyatt,
"If therefore the train could not have been seen or heard, had the intestate stopped and looked and listened before attempting to cross the track, then a failure on his part to do so cannot be affirmed as the proximate cause of his death."
The effect of the failure to stop, look, and listen at a railroad crossing as negligence has been a fruitful source of discussion. The decisions are not uniform on the question of whether or not the so-called rule for a failure to stop, look, and listen at a railroad crossing for approaching cars, trains, or engines, is a "hard and fast one" and absolute in all cases under all circumstances. 1 A.L.R. 203 et seq. In this jurisdiction it may appear, from such report as is made of two cases (being memoranda), that it has been declared that a person approaching a railroad track at a crossing, and who is about to go upon the same, is under an "absolute duty" to first stop, look, and listen for approaching trains, and the failure to perform this duty makes him guilty of contributory negligence, as matter of law, and precludes recovery. Spradley v. Ala. Midland Ry. Co.,
In A. C. L. R. Co. v. Jones,
It is therefore settled in this jurisdiction that it cannot be affirmed as matter of law, in every case and under all circumstances, that there is an absolute duty to stop, look, and listen, before a traveler, whether on foot or in a vehicle, may go upon a railroad crossing. This was well stated in L.
N. R. Co. v. Williams,
"What is, or is not, ordinary care often depends upon the facts of the particular case. The rule, 'stop, look, and listen,' is not arbitrary or invariable as to time and place. It may depend in some measure upon the familiarity of the one passing, with the place of crossing; and he cannot always be said to be guilty of contributory negligence, because he failed to stop, look, or listen at one particular time or place, rather than at another."
See, also, L. N. R. Co. v. Williams,
It must also follow that where several railroad tracks lie alongside or immediately adjacent, a traveler about to cross the same may be said, generally, to have exercised due care and prudence if he stopped, looked, and listened before he ventured upon the first track, and is not required, as matter of law to repeat the precaution of stopping, looking, and listening at each of the said tracks in succession. Cherry v. La. Ark. R. Co.,
"It is the duty of the person intending to cross a railway to stop, look, and listen for approaching trains; and this use of the senses must be made within such nearness to the track and under such circumstances as will afford the highly important information to the traveler and operate as the precaution the most ordinary prudence, in such circumstances, suggests; and the duty, unless excused as indicated, is continuing at least to the extent of excluding the injection of an element of danger into the situation between the time he last stopped, looked, and listened and the time he enters the zone of dangera moving train would create." (Italics supplied.)
As to the continuing duty to see that the way is clear, note L. N. R. Co. v. Calvert,
Another familiar principle is that it is the duty, under ordinary circumstances, of travelers or persons intending to cross a railroad track at a public crossing or elsewhere, not being expressly or impliedly invited by defendant, its agent or servant, to cross, to look in every direction the rail runs, and to listen for approaching trains, and one who fails to take this precaution is guilty of culpable negligence, if the other circumstances are such as so to charge him therewith. L. N. R. Co. v. Richards, Adm'r,
A careful examination of the evidence for the respective parties discloses on behalf of plaintiff that when his agent approached the railroad track, driving the truck, and to the crossing where the flagman was, he blew his horn, slowed up, and stopped at a point "about fifteen feet from the railroad track on which the engine was backing"; that he did not see the engine coming on the second or subsequent track; that his view was obstructed by a cattle pen and some empty box cars which were on the first track, and the engine was coming on the track on the "other side of the empty box cars"; that there was a flagman at the crossing "standing off" when plaintiff's agent stopped, and "when he blew" the horn on the truck the flagman told him to go ahead toward the river. Plaintiff's testimony tended to show that the driver of the truck did not hear the engine give any signal of its approach; that he "did not hear any noise from the engine"; and that the tracks of defendant company across Eslava street, at the place of the collision, were imbedded in the street, the point being a public street crossing frequently used by said driver as a part of the general public. There was a tendency of evidence on the part of defendant, in conflict with that of plaintiff, as to the stopping of plaintiff's agent and the giving of signals by the respective parties. It is without dispute that a person was at the crossing in question, before and at the time of the collision, acting as flagman; and there was conflict in the testimony as to whether or not the signal given by such flagman, in response to the approach made by plaintiff's agent to the crossing, was to stop or to proceed upon the crossing. There was a tendency of evidence producing conflict as to whether or not the engine was proceeding with the ordinary or required signals, or what signals were being given.
The fact that, on cross-examination, a witness had made use of expressions from which a different inference could be drawn from that of his direct examination, will not warrant the excluding of the testimony of the witness, and the giving of the affirmative charge. Jones v. Bell,
It is not necessary to consider the other questions presented. They may not recur on another trial.
Reversible error having intervened in the giving of charge 9 at defendant's request, and on the exclusion of evidence, as we have indicated, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur. *334