Sloss-Sheffield Steel & Iron Co. v. Willingham, 199 So. 28

29á Appeals Court of follow de- failed to cision. IRON CO. by Hence the review certio- STEEL & SLOSS-SHEFFIELD rari. WILLINGHAM. . refusing The rule giving as to the or 712. Div. repeated. charge the affirmative need not be Supreme Alabama. Court Aiken, McMillan v. 10, 1940. Waldrop, Pizitz Dry Louis Goods Co. v. Oct. Sloss-Sheffield

Rehearing Dec. 1940. Denied Peinhardt, supra. Steel & Iron Co. v. power of this court to re- part view such action on the of the Court Appeals organic (Constitution, 140) statutory law. §§ p. Amer.Juris. parte In Ex Louisville R. R. & Nashville 631, 636, 637, this court declared: say “It is sufficient to that this court will powers cautiously sparing- exercise its necessary only cases, ly and in extreme enumerate, by to and when not covered however, will, following instances. We variably unhesitatingly, certiorari or writs, superintend other and control compel Appeals, action Court so as to prevent action within its beyond jurisdiction, well as to uniformity har- preserving extent of pre- mony between its decisions and those * * * viously laid down this court. “ specify the rea- attempting Without justify us may be sufficient sons cases, arewe other power in exercising the to in may be resorted it opinion that First, when the following instances: Bradley, jurisdiction to without Appeals C. Kingman Shelburne Court of second, question; White, Birmingham, Baldwin, all of judgment review All guided refuses petitioner. for clear case when in a laid down law by the controlled Emond, Birmingham, re- for Clifford In this court. prior decisions spondent. imperative du- our event, become it would uni- enforce it, order to ty to resort THOMAS, Justice. appellate courts in the formity decision ” review petition for certiorari This is a the state.’ Appeals. of the Court of the action presented, counsel of the situation And on both respective briefs of counsel observes, aptly petitioner where appeals (this and that Sloss-Sheffield purpose are consolidated for the cases ante, Peinhardt, p. Iron Co. Steel & together and are tried and on of trial le- pleading, in that same show causes, Supreme said peal each of effect, in evidence. and facts gal in one cases Court holds charge should have Steel & Iron affirmative been Sloss-Sheffield defendant, Ap- Peinhardt, supra, for the the Court of given it was held that “there taken, which the other case is declining give general peals, was error is identical charge requested in and the is- writing by where the evidence affirmative effect, legal has no alter- the same It held the evidence sues defendant.” except operation by to follow the decision of the negligent defend- native no showed Supreme is the rule of the Such col- Court. its train ant of lided; Supreme rehearing decisions it was that well-understood Appeals. Court of and of subsequent negligence was shown. The Court 295 Rogers 872; State, 1, v. 239 Ala. 193 So. acting driver within scope the line and of 10276; 7318 and A. P. employment Great & his §§ the at time of the collision. Crabtree, 457, Tea Co. Ala.App. v. 27 173 City In of Birmingham Latham, v. 230 894; Casualty Fidelity So. Co. of New 601, 606, Ala. 162 So. Mr. Justice Raborn, 458, York Ala.App. v. 27 173 So. (now Gardner the Justice) Chief observed 895; 527, State, Ala.App. Thornhill v. 28 of the definitions of results of reasonable 913; Equitable 189 Assur So. American sequence, according ordinary course Bailey, ance Co. 25 of New York v. Ala. events, that “These definitions are based App. 303, 147 So. 446. upon theory person the that while a ex is pected anticipate guard against all may It of Ap- be said here that the Court consequences, yet reasonable not he is ex peals believed from its the es- record and pected anticipate guard against tablished rule that error that obtains that which no reasonable man would ex Supreme intervened in as de- the Court pect Ry. to occur.” Mutch, Western Co. v. companion in the clared case of Sloss-Shef- 194, 97 894, 11 316, Ala. 21 L.R.A. 38 Peinhardt, supra. So. field Steel & Iron Co. v. 179; Am.St.Rep. Fountain, Holt v. 218 may been, However this have it was the 661, 149; Ala. 120 So. Louisville & N. R. Appeals of the the Court follow Quick, 14; Co. v. 125 Ala. Ruf announcement of court. It fin Rich, Coal & Transfer Co. v. 214 Ala. examining observed that is now this court 596; Ry. v. Street Armstrong the facts- of the cases before all the two 123 Ala. Morgan 26 Hill So. justices application to a of the rules correct Paving Fonville, Co. v. 119 govern jurisdiction. appellate in this 610; Vaughn Dwight Mfg. Co., So. (cid:127) opinion the former it was ** Ala. *. bearing where the issues “When the facts are such that reason- dispute touching the the conclusion, able men must draw the same difference a reasonable question proximate the cause is one of opinion, question jury the de- is a law for the courts. The above-noted Dry v. Wal- cide. Louis Pizitz Goods Co. authorities suffice illustrative- of Aiken, supra. drop, supra; McMillan v. Generally, question rule. the one for the permits But where of but one the evidence jury. Morgan Fonville, Paving Hill “to be drawn rea- reasonable conclusion supra.” men,” “proximate question of sonable by' the court as cause” is to be determined introduced in evidence in Supreme Court followed one of law. The terrogatories propounded and answers case, supra. Peinhardt the latter rule in the defendant thereby vouched for whether or not the question here correctness of such Equitable evidence. should have been general charge affirmative Life Assurance Society Welch, Adm’r, case, Willingham which was given in the a Louisville & question presented both Scott, 232 of law as Nashville R. Co. v. evidence. peals pleading on like State, Peterson v. 150 So. 156. The evidence was to the considering Willing- Therefore, effect that the truck collided with or “ran Appeals had case, no al- the Court of ham against the side last car of the train holding of the ternative but to follow * * * composed of locomotive and in the Pein- Supreme of Alabama Court cars”; of contact was case, supra. hardt “with the last car on right side”; hand Supreme Court of Ala- fact that there was no notice or warning to the held that defendant bama was entitled engineer “that was going crash, charge affirmative in the might likely crash into the side of the testimony Peinhardt case means train”; plain “vehicle in which suscepti- of said case was not in the record tiff riding where the interpretation by of other reasonable ble accident occurred, your engineer when and/ men. or fireman saw the approach first vehicle ing of such It should be collision” was remembered some that the Pein- thing away”; like “a block signals hardt case and Willingham case are involving given anticipation not cases “were passen- possi and a ger. The rights bility cases involve collision, recovery crashing or the plain driver and of the owner truck, tiff’s truck into the side of the rear car of employer was the who driver, as the crew no notice that he —the an hour than nearer one-half likely train and did into the might crash city (when signal distance of block Regular anticipate any act. such given), the train be- whistle for the with bell and signal just given, twenty crossing; feet (started) about locomotive before way of the in- time that no unusual crossing, at that the conduct over the agents that the plain- dicated to the defendant’s train to cross and the was clear for tiff and his truck North, “stop, not and rule look and listen” would of coming were observed; moving the train was with last got partly that train across after the hour; per into from 8 to 10 that the truck crossing, plaintiff crashed miles car still on ” * * * approached point the rate further the of contact at Defendant last car. hour; per 20 miles left no was IS to doubt “No whistle of as follows: answered blown immediately or a reasonable man would be warranted anticipation of the crash that in stop assumption crash,- in that the truck but the the would the before shortly and not with the train. signal was blown collide regular crossing engine crossing.” the entered before the observa- foregoing The with the in- there in the Peinhardt case question, “Were tions contained answer to the undisputed proof the cars, cars, passenger of that freight dicate state any box must standing on that reasonable men facts are such sort of cars coaches or other proxi- point to the where draw the conclusion as any tracks at or near the collision, time, if in the and as said mate cause of occurred at said collision case, supra. cars so, of of each such the Peinhardt give location the public road the to said reference had admitted he that and with place took where collision said way frequently approached by that freight passenger the reference to depot and/or anything to failed there was to show that the defendant nearest to the train with the the obscure view of stop- collision,' regular next or the such headlight signal its and the illumination of stop defendant was

ping place where the, running board of of the man on the train,” “No.” said said defendant anticipate tender. The rule is that one is you state all con- question guard against “If .reasonable And further the no against at said which you sequences not have a watchman and not that that did you may expect or not had to occur. crossing, state whether man presented Such then reasonable any appeals. in signal or warn- case both light give bell or in the motor truck the driver of (cid:127) hearing negative of not evidence approach riding, plaintiff was which signals seeing lights by the witnesses or so, (a) which and train. If state of said whether it was dition,” explained by Tolliver, Hall and Watts is working or in order observation, or lack of atten- their tion as following to which the asked by the the facts shown this and “Yes, had a bell and answer was made— plaintiff’s own evidence contained lights engine, other two head propounded to terrogatories and answer? They (a) were all lights on the defendant under the statute introduced properly.” illuminating good condition plaintiff. The" evidence any supported lights at all on the above- testified: “I see didn’t The other me.; passed it the train until after it turned engine. stopped up quoted statements. around, the firebox of the I me seen photographs taken The evidence headlight after it I saw undisputed evidence exhibited, other man there. If there public where the col- that at the front the tender as standing on occurred, the train the truck struck lision beyond any- didn’t see crossing, went over the I at or near one engine there, anybody standing body. been If couplings; there was undis- hot-pot that seen I have looks like I could have him. twenty-eight feet of puted evidence six an truck five or driven automobile the truck were shown skid marks approach years, My good all told. brakes were which to the made shape night; we had the brakes ad- stop truck; attempting the fact justed * * night. Sunday before point of release brakes was » (by location the truck the state- Hall corroborated ten t-welve feet witness from the agent witnesses and that ment of the crossing); of defendant saw defendant’s public as to the skid marks interrogatories plaintiff and the truck on the street of the “back toward town” and did proceeding thirty rate the truck at the of about miles of agent approaching was not on lished that that defendant’s say not knowledge tender. must avail himself of of the lo- board of the running cality reasonably as far as can do he reasonable have indicated We accordingly. Wilmington act Owens v. statement, Willingham’s inference Co., Philadelphia Traction 1 W.W.Harr. the rear of the lights were no there 31 Del. 117 A. and his fa- tender, man on the reference miliarity with local conditions be suf- headlight running board ficient to show when considered engine. in connection with other material circum- time that at or about the It will be noted stances. Bates v. C.J. were two motor collision there Louisville & N. R. crossing, one vehicles Calvert, Louisville & N. R. v.Co. less north was more or Adm’r, 812; 597, 55 So. Central by the track obscured to the side of as Georgia Barnett, 407, R. Co. 151 v. Ala. houses; yet car observed the that rule 44 Georgia Ry. Central of Co. v. “stop, and there look and listen” was no Foshee, 125 Ala. 27 So. 1006. injury that accrued to it. We have in- general The authorities are to the ef the instant truck from the dicated stranger approaching fect “a a rail an unobstructed view of the south had road crossing must exercise due for care that no immediately approaching safety his own R. v. Northern Pac. [Rau speed was until the effort made to check Co., 521, 580; Baltimore, 87 Mont. 289 P. within 28 or 35 feet of the truck was etc., Kately, 16, R. App. 26, Co. v. 12 Ohio crossing. no effort was made to Thus 30 97], ignorance O.C.A. and there “stop, and observe the look listen” rule of any point crossing railroad at the until it was too late and the collision was question will not excuse the resulting danger which occurred. who traveler should have observed the There is no evidence that would indicate [Allyn etc., Co., Boston, v. R. 105 member the train crew realized 77, Co., Mass. Horandt Central v. R. that the rule would be observed this 190, 78 Baltimore, etc., 73 A. N.J.L. anyone saw him nearer to driver or Co., Kately, 16, R. v. 12 App. 25, Ohio 30 than one-half block from the crossing 97; Anspach etc., O.C.A. Philadelphia, point of collision. Co., 528, 373, R. 225 L.R.A., A. Pa. 28 When taken with this evidence is the two * *." N.S., Corpus 382.] 1861. Juris photographs showing the intervention of 286, § presented sight, no obstacle as that was foregoing general The authorities state of the Peinhardt truck as it requirements stranger approach- of a approached from the south ing a railroad crossing and duty as to and his that his admission attention was on due care exacted of him safety. for his truck from- What is rule of our cases ? north, no doubt was left the mind of proximate a reasonable man that the cause many The jurisdiction cases this on when it and the collision occurred at the' “stop, rule look listen” and impact undisputed and the evi- in Cunningham considered Hardware Co. v. Willingham “stop, that he did not dence Co., Louisville & 327, Nashville R. required, listen” look and the law was' 358, 96 So. to the effect that it cannot be due to the negligence of affirmed as a matter every of law in case driver. and under all circumstances that there is- duty absolute stop, an look and listen upon person approach- rests The before a traveler go on a railroad going on a railroad to ex- crossing. This expression last ordinary prudence ercise care to dis- this court as to the effect of our approach several cover the of trains. Such has been point just decisions on the indicated. many opinions judgments times in of Atlantic case Coast Line Jones, R. Co. v. of this court. The facts of no cases 202 Ala. explained exactly are the same and hence there can upon commented in Cunningham Hardware be no hard or fast rule as to what con- & Louisville Co., Nashville R. su- contributory negligence stitutes is de- pra. -upon pendent surrounding 'cir- in various cumstances cases. In Sloss-Sheffield Steel Iron Co. v. Stewart, Peinhardt, supra, & N. R. Co. we that Wil- Louisville lingham general familiar it is well estab- signs maintenance erection to as to the Cullman approach from ditions has section crossings. Said railroad that at Peinhardt Mr. Birmingham. evidence clear that the application here in him since driving for had been Willingham and col accident alleged ly that the 'he showed testified 1934, that corporate lim place within took lision question across two streets traveled Appel v. Birmingham. City of railway- its of the defendant’s line of which the & S. R. St. he Selma of the time and that one-fourth passed, Smith, Ry. v. Air Line and Seaboard way crossing at passed over 53 Fla. condi- local collision occurred. who tes- witnesses all the observed tions city councils au- vests marks skid the same indicated tified as to crossings, thority regulate railroad 35 feet from about the road crossings, grade “appliances, on cluding the fact crossing. This showed cross- public” grade at safety of the presence of the knew the the driver ings. dis- some track when he was train on the away car under did not have his tance GARDNER, and BOUL- Chief Justice duty to do. control as was his FOSTER, BROWN, and LIVING- DIN, “stop, rule as to the writer STON, JJ., accord are look and listen” is in accord with grant- should be writ of certiorari authorities those prop- to the ed, their concurrence limit but person required the effect is not that “a erroneously the court osition regulate his conduct reference with Code 9954 of the jury that charged the § justifiably ignorant. he facts of which is City Birming- within the application be.guilty In order that occurred, and to ham, collision where the tributory he negligence it is essential duly reserved exception was which knowledge and act or fail to act with defendant. preciation, imputed, dan- actual or injury ger or conduct involves.” his KNIGHT, the writer J., concurs Corpus (Citing cases.) Alabama Ju- toto. ris, p. § We advert the words of Mr. BROWN, Justice Justice. Bouldin in R. Co. et v. Southern Johnston warrant nothing the evidence to find I al., as fol- the defendant’s servants an inference legal duty stop, (to : “This look lows subsequent negligence. guilty of listen) grows out of well-known fact appears plaintiff’s clearly fact it removed, stopped, train cannot a physical testimony and' already crossing, a with the same dis- if block- passed over train had equipped patch a motor car the law plaintiff’s automobile while street duty requires. It is a cross- see crossing, and distance from was some danger from ing is clear of that the trainmen dis- there is patent trains, and even more when just approach until before the cerned already crossing, is and its train the presence ques- Therefore, conceding that the crash. warning. This court has of- is simple, initial awas tion emphasis, ten, great declared it nevertheless question, the evidence jury disregard law negligence as matter of stop, failed undisputed that the * * * duty. (citing many cases).” listen, my and to mind there is look supplied.) (Parenthesis evidence to excuse him nothing in the negligence, as a erroneously doing. His matter of charged court trial the so injury law, contributed to applica- proximately the Code his 9954 of jury simple, case, recovery for such initial colli- bars where the tion City of Birmingham, negligence. occurred sion

Case Details

Case Name: Sloss-Sheffield Steel & Iron Co. v. Willingham

Court Name: Supreme Court of Alabama

Date Published: Oct 10, 1940

Citations: 199 So. 28; 240 Ala. 294; 1940 Ala. LEXIS 252; 6 Div. 712.

Docket Number: 6 Div. 712.

Court Abbreviation: Ala.