Louisville & Nashville Railroad v. Stewart

128 Ala. 313 | Ala. | 1900

SHARPE, J.

Recitals in this record relating to demurrers to pleadings are not such as to constitute judgments disposing of the demurrers, and under the practice established by previous decisions the matters assigned for error based on such recitals cannot be reviewed. — Jasper Mer. Co. v. O’Rear, 112 Ala. 247; McKissick v Witz, 120 Ala. 412; Blankenship v. Owens, 27 So. Rep. 947; Hereford v. Combs, 126 Ala. 369; Bessemer L. & I. Co. v. DuBose, 125 Ala. 442.

Recovery is sought for injuries sustained by the plaintiff in being thrown from a bicycle by colliding with defendant’s engine on Eighteenth street in Birmingham. Eighteenth street runs nearly north and south, and along a distance of about 363 feet is crossed by numerous contiguous tracks belonging to defendant and another railroad company extending eastward and westward. The most southern of those tracks were used principally for freight trains, Where they crossed the street, a watchman was stationed who acted for both companies in warning street travelers of the approach of trains. Next to those tracks were others used for passenger trains which entered the station enclosure through gates extending along the east side of ¡the street. The gates were raised only to admit the passage of trains, and the person who acted for defendant in operating them was accustomed to warn street travelers against trains when necessary. Outside of, and north of, the enclosure, were other tracks sometimes used for switching, at which no guard was stationed.

About nightfall, plaintiff with two companions riding bicycles approached the track — crossing from the south —and were signalled by the watchman at the freight tracks to proceed. The freight tracks were crossed with safety, but on a passenger track plaintiff Avas closely pressed to cross ahead of a train the approach of Avliich from the Avest had been obscured by standing cars. She quickened her pace to avoid the passenger train and on leaching the. switching track came in contact AAdth a SAA'itch engine AAdiicli aauis backing from the east.

Plaintiff testified in substance among other things that she Avas a little excited by seeing the passenger train so near, and that she had moved after crossing that passenger track about 20 or 25 feet over three or four tracks AAdien she AAnas struck by the SAvitch engine after the front Avheel of her bicycle had crossed one rail of the SAvitch track, and that she had no Avarning and kneAV nothing of the engine until a second before it struck lifer. Other evidence tends to shoiv that betAveen the track on which the passenger train ran and the place of 'the accident Avas 78 feet,, that the engine had headlights burning on both ends, that its bell Avas being rung, and that the plaintiff rode against the engine, striking it several feet from the front end.

No error Avas committed by the 'trial court in its rulings on objections to eAddence.

In support of averments of negligence it Avas proper to admit proof as to AVhat tracks the AAmtchman was accustomed to attend, and as to Avhat opportunity street travelers had of knoAving the movements of trains oxmr the street.

Though the passenger train aaais not the immediate cause of the accident, its movements Avere of the res gestae; proper to be proven and considered as bearing on the question of contributory negligence,

A witness though, not an expert may from observation of a running train, testify as to its speed. — K. C. M. & B. R. R. Co. v. Crocker, 95 Ala. 412.

Statement of Mrs. McPherson 'about plaintiffs physical condition were apparently of fact and not of opinion.

Opinion evidence of experts such as physicians may he based upon the facts of which the witness has actual knowledge as well as upon abstract hypothesis. It is not a valid objection to a physician’s opinion concerning cause and effect of disease and injury that it assumes the form of a conclusion. — 1 Green. Ev., § 440; Mobile Life Ins. Co. v. Walker, 58 Ala. 290.

Snitzer’s testimony concerning the rule of backing engines was not plaintly irrelevant, and, therefore, the court will not he placed in error for overruling the merely general objections thereto. — Rule of Court, 90 Ala.

Charges 1 and 3 requested by the plaintiff unduly restricted the jury in determining whether the plaintiff was guilty of 'contributory negligence, and should not have been given.

It is true that one charged with the duty of giving warnings of the movements of trains may by others he presumed to know what trains are about to move, and that one about to cross the tracks may, when no danger is apparent to him, rely and act upon the invitation given him to cross without observing the usual cautionary requirements of stopping, looking and listening. — L. & N. R. R. Co. v. Webb, 90 Ala. 185. And it not appearing that the plaintiff knew to what track the watchman’s duties extended, the question of whether she was justified in relying on his signal as invitation to cross all the tracks was under the circumstances one for the jury. This is perhaps sufficiently recognized in plaintiff’s charges 1 and 3; but they each contain a further proposition inserted probably in an attempt to pursue the first paragraph of the rule quoted in Cook v. Cent. R. etc., Co., 67 Ala. 533, from Wharton’s Law of Negligence, section 304, which states that “a person is not chargeable with contributory negligence who when unwarned peril comes on him suddenly acts wildly and madly.” If under any condition of evidence that proposition may be stated in a charge to the. jury this is not such a case. We think it was only meant to assert that under the conditions mentioned, contributory negligence would not he imputed as a conclusion of law. This is indicated by the next paragraph of the quoted rule, which proceeds thus: “For persons in great peril are not required to exercise all the presence of mind and care of prudent, careful men; the law makes allowances for them and leaves the circumstances of their conduct to the jury.” Assuming as the jury might have done, the truth of the evidence tending to show that the passenger track and the switch track in question were 78 feet apart, and that plaintiff rode against the engine, it cannot be affirmed as matter of law that the plaintiff did not recover from her excitement caused by the passenger train in time to have, avoided the accident. The fact, if it be such, that by the passenger train she was subjected to and deprived of good judgment by danger so sudden and imminent as might naturally have had such effect on a person of ordinary prudence and judgment, and was thereby caused to act wildly, should have been submitted to the consideration of the jury without' giving it the conclusive legal effect, either alone or in connection with the invitation to cross, of acquitting the plaintiff of contributory negligence. — Woodward Iron Co. v. Andrews, 114 Ala. 241; Holland v. T. C. I. & R. Co., 91 Ala. 444; Buel v. N. Y. Cent. R. Co., 31 N. Y. 314; Railroad Co. v. Yarwood, 17 Ill. 509. Charge 3 was also faulty in all hypothesis as to whether plaintiffs wild action, if any, was induced by the danger referred to.

In charge 11 requested by the defendant the pronoun “you” should be followed by the words “that the plaintiff,” or words of similar import in order to make it good. Outside, of the bill of exceptions the same charge is set out in the transcript except that those words are inserted, but we have only to consider the bill of exceptions in determining which charge was refused.

There was no error in refusing any of the other charges requested by the defendant, or in giving plaintiff's charge numbered 2.

Counts of the 'Complaint with reference to which the general affirmative charges were refused to defendant are each 'Supported by some evidence.

Charge 12 was calculated to mislead the jury in that the term “ordinary circumstances” might have been understood to include the giving of signals to cross tracks, which may in the absence of apparent danger, absolve a traveler whether on foot or on a bicycle from the duty of stopping, looking and listening for trains.

The refused charges not specially mentioned either ignore the effect of the invitation to cross or the principle which makes allowance for unduly excited and mistaken action in one who, by a defendant’s wrong, is subjected to danger of such sudden and imminent character as would ordinarily have induced such action.

For the errors in giving plaintiff’s charges 1 and 3 and in refusing defendant’s -charge 11, the judgment must be reversed and the cause remanded.

Reversed and remanded.