64 So. 666 | Ala. Ct. App. | 1914
There was evidence tending to prove that the plaintiff’s minor son, as he was riding in a buggy at night and approaching the place of crossing of the defendant’s track and the street in the town of Odenville on Avhich he Avas traveling, stopped the buggy about 50 or .75 yards from the crossing, looked and listened for an approaching train or engine, and discovered nothing to indicate the proximity of either except the light of an engine Avhich Avas standing still 150 or 200 yards from the crossing;. that, proceeding then toAvards the crossing, and after passing a building,
It is contended in behalf of the appellant (defendant beloAv) that it was a necessary inference-from the undisputed evidence in the case that the plaintiff’s son was guilty of negligence in failing to make another stop before undertaking to drive over the track. It is insisted in argument that this conclusion folloAvs from an application to the evidence in the case of the rules stated in the cases of Central of Georgia Ry. Co. v. Foshee, 125 Ala. 212, 27 South. 1006, and Central of Georgia Ry. Co. v. Barnett, 151 Ala. 407, 44 South. 392. Those rulings are to the effect that a traveler in a vehicle Avho, on approaching a railroad crossing, stops so far from it as not to be able to discover the danger from an engine or train then in proximity to it, is not relieved of the duty of stopping at some point nearer the crossing Avhere he could discover the peril in proceeding-farther. A different case is presented Avhen such a traveler stops near enough to a much-used public crossing-in a town to ascertain the situation with reference to it of an engine then in its vicinity and discovers that such engine is at a standstill some distance from the crossing. If Avith this situation disclosed to him the traveler proceeds on his Avay, seeing the engine again when he is about 40 yards from the crossing, and, in the
The result of applying the familiar rules governing the revieAV oh appeal of the action of a trial court on a motion for a new-trial is that the assignment of error based upon the overruling of the defendant’s motion- for a neAV trial cannot be-sustained.
Affirmed.