143 Ala. 133 | Ala. | 1904
The complaint seeks to recover damages for personal injuries suffered by plaintiff, and to his horse and buggy, on account of the negligent failure of defendant’s engineer, and other persons in control of a locomotive, to give the signals required by § 3440 of the Code.
The injuries complained of, as shown by the evidence, were occasioned by the fright of plaintiff’s horse at a passing train, near a public road crossing. At the crossing the track of the railroad was constructed upon a bridge or trestle sufficiently high above and over the public road to allow.travelers in vehicles and on foot to pass along the road under it with safety.
The question here presented is whether § 3440 has any application to crossings of this character, or are the duties imposed by it only to be observed "when the crossing of the railroad and the public road are on a level or at grade?
' The solution of this question does not depend, as seems to be insisted by plaintiff’s counsel, upon a construction
Section 3441 provides that “Where the tracks of two railroads cross each other, engineers and conductors must cause the trains of which they are in charge to come tO' a full stop within one hundred feet of such crossing and not proceed until they know the way to he clear.”
Section 3442 requires all railroad companies to erect, at all points where its road crosses any public road, a sign to give notice of the proximity of the railroad and to warn persons of the necessity of looking out for the cars.
Section 3443 makes a railroad company liable for all damages done to persons, or to stock, or other property, resulting from a failure to comply with the requirements of the three preceding sections above noted; and, when any person, or stock, is killed or injured, or other property destroyed or damaged, by the.locomotive or cars of any railroad at any one of the places specified in the three preceding sections, the burden of proof, in any suit brought therefor, is on the railroad company to show a compliance with the requirements of such sections.
Section 5369 of the Criminal Code subjects the engineer or other person, having the control of the running
When we consider all of these provisions together, as we must do, since they have reference to the same subject and form one united system, it seems to us clear that the design sought to be accomplished by § 3440 was, as said in L. & N. R. R. Co. v. Hall, (89 Ala. 708), “To warn and protect persons who, at a public crossing, pass across and directly on the track .and who would be in danger of being struck and run over by an approaching train.”
In L. & N. R. R. Co. v. Markee, (103 Ala. 173), the evidence showed that plaintiff’s intestate was a section foreman, riding on the track of defendant on a hand-car in the discharge of his duties,‘and at the time going south. The train which ran over him was traveling in the same direction. The hand-car was about emerging from a cut in which there was a curve when it was overtaken by the train. The proof showed also that there was a public crossing of the railroad about one-half a mile north of where the killing occurred. The evidence was in conflict as to whether the whistle was blown for the crossing. The defendant requested the court to instruct the jury that it owed the deceased no duty to blow the whistle at the public crossing, which was refused. This Court held that the charge should have been given, and based its ruling- on the extract taken above from Hall’s case and similar expressions used in Hembree’s case (85 Ala. 481), and Hawk’s case (72 Ala. 112.).
In Hembree’s case it is said: “The duty to blow the whistle or ring the bell, when approaching a depot, public crossing, etc., is intended for the safety of persons, stock, etc., who may chance to be crossing the track as the case may he ”
In E. T. V. & G. R. R. Co. v. Bayliss, (77 Ala. 434), this language is used: “The statute ought not to be extended, by construction, to cases not included in its clear and unambiguous terms, especially as a failure to comply with the requirements of the statute is a misde
In Central of Ga. Ry. v. Forshee, (125 Ala. 199) it is said: “The duty which the law imposes on them (trainmen) 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.”
But, it is said by appellant’s counsel that all this is dictum and, therefore, should not be followed. In this we cannot concur. In each of the cases the question of the application of the statute arose, and what is quoted wa.s said in response to that question. It is true, in none of them was the crossing of the character of this one. But that fact doesmot, and cannot, in our opinion, impair their integrity as precedents, interpreting the statute here under consideration. But whether dictum or not, we think what was said in those cases was clearly the design of the statute.
The cases, cited by appellant in other jurisdictions to sustain his contention, arose under statutes very different from ours, and are not, therefore, authority. But, even if they could be considered as authority, avo would be unAvilling to folloAV them in the face of the clear defined purpose of the statute by this Court.
Confessedly, if the defendant’s servants were under no duty to give the statutory signals, as alleged it Avas their duty to do, the plaintiff failed to make out his case and the affirmative instruction given at the request of defendants was proper.
Affirmed.
