Kearns v. Mobile L. & R. R.

71 So. 997 | Ala. | 1916

SOMERVILLE, J.

The question of decisive importance in this case, as presented by the demurrer to defendant’s third plea, is whether the nine red lights stationed as warning signals— three on each side of defendant’s street railway track with an open space of eight feet occupied by the track between them— were, as a matter of law, a sufficient warning to travelers in vehicles, who saw the lights, that the street way within the two rows of lights was in a condition dangerous or impassable for vehicles.

(1) It must of course be conceded that, as a general rule, the sufficiency of signals or barriers to give reasonable warning of or security against existing danger, especially with respect to their character, number, and arrangement, is a question of fact for the jury. Counsel for appellant have collected a number of cases so holding: Mayor, etc., of Baltimore v. Maryland, 166 Fed. 641, 92 C. C. A. 335; Meek v. Nebraska Tel. Co., 96 Neb. 539, 148 N. W. 325; McMahon v. City of Boston, 190 Mass. 388, 76 N. E: 957; Grider v. Jefferson Realty Co. (Ky.) 116 S. W. 691; Stockton Auto Co. v. Confer, 154 Cal. 402, 97 Pac. 881; Sutton v. City of Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. Rep. 847; Donnelly v. City of Rochester, 166 N. Y. 315, 59 N. E. 989. See also, Fox v. Wharton, 64 N. J. Law, 453, 45 Atl. 793.

(2) We were at first of the opinion that, as a matter of simple, practical common-sense, the two rows of red lights, as shown by the plea, constituted a reasonable and sufficient warning to travelers, regardless of all other circumstances, not to pass along the car track between the lights; but, upon further consideration, we are of the opinion that the conclusion cannot be safely reached by the court, and that the question should be determined by the jury in the light of all the facts. It may be that the street lights made visible to plaintiff the excavations outside of the rails, but not those inside; and it is conceivable that two such rows of lights might be placed to guard outside excavations alone, with nevertheless -a safe and unbroken passageway within. It does not appear how far the excavations extended along the track, nor how far apart the lights were in the rows — a circumstance which might favor conflicting inferences as to the significance of the lights as they appeared to plaintiff. It may well be that a jury would have no difficulty in finding that lights were, under all the circumstances, a sufficient warning against the attempted passage, or that plaintiff was in any case guilty of contributory negligence. But we think the jury ought to pass on these questions. We hold, therefore, that the plea was subject to the demurrer, which should have been sustained.

(3) Although the plea alleges, by way of conclusion, that plaintiff “assumed the risk” of driving between the lights, the plea is necessarily to be regarded simply as a plea of the general issue, since it is in traverse of the complaint, which charges a negligent failure to guard the excavations with “proper and sufficient danger signals.” If the signals were sufficient, plaintiff’s case fails. If they were not sufficient, plaintiff did not, merely because he saw them, assume the risk of a danger which they did not fairly forecast.

The other special pleas were not subject to the demurrers assigned. For the error in overruling the demurrer to plea 3, the judgment will be reversed, and one here rendered sustaining the demurrer, and the cause will be remanded.

Reversed, rendered, and remanded.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.