97 So. 209 | Ala. | 1923
Lead Opinion
Counts 7 and 8 charge wantonness, but the facts set up as *121
constituting same are not sufficient as the mere failure to observe the statutory requirement as to signals even at a populous place or crossing without more is not per se wantonness. A. G. S. R. R. v. Linn,
The intestate was not killed at a public crossing, but it is insisted, and may be conceded, that it was a point where people crossed the defendant's track in great numbers at a particular hour of the day, to wit, just before and immediately after the arrival of the mail train, and which was due to arrive at or about the time of the injury in question, yet the proof fails to show that the train in question was operated at such a rapid rate of speed as to render a failure to give the warning signals wanton misconduct on the part of the enginemen. Cases supra. The proof shows that this was a heavy loaded freight train, going up grade, making a great noise by the exhaust, and not going at a greater rate of speed than 10 to 12 miles per hour, and could have been stopped in a very short distance, so, even if the signals were not given, but as to which fact there was a conflict in the evidence, the conduct of the enginemen did not, as matter of law, amount to wantonness. Moreover, had the proof shown that the train was running at a dangerous rate of speed under the surrounding circumstances, there is nothing to show that these particular enginemen were conscious of probable danger to people at the point in question. True, they had been running on this road several years, but there is nothing to indicate that they had passed this particular point with such frequency at the particular hour of the day when the passageway was used with great frequency as to apprise them of the use or habit of the people, and thereby charge them with notice of the probable danger. This was a through freight, which may have had no regular schedule time, nor was there proof of the schedule time of the runs of this engineer or fireman, so as to make them familiar with the use of defendant's track as a passageway at the hour when it is claimed the crossing was populous. L. N. R. R. v. Heidtmueller,
The proof also shows that the train could not have been stopped after discovering the intestate's peril and before striking her, but, in addition to this, it shows that the train was equipped with the usual modern means of stoppage, and which were in good working order, and that the engineer immediately resorted to the most effective means of stopping the train as soon as he was informed of the danger. Harris v. N.C. St. L. R. R.,
It is insisted that the engineer or fireman, one or both, was guilty of subsequent negligence for failing to blow the whistle after discovering the intestate. This may be questionable for the reason that they may have thought she was not in peril under ordinary conditions or they may not have had time to do so; but we may concede that they did have time, but the only purpose or good in blowing the whistle was to warn her of the approach of the train, and the undisputed evidence shows that when she was first discovered by the fireman, about 25 feet ahead, she was looking towards the approaching train. There was no proof that her eyesight was defective, and presumptively she saw the train, and blowing the whistle could serve no good purpose. On the other hand, if we concede subsequent negligence in this respect upon the part of the defendant's servants, a careful examination of this record discloses a case of the most flagrant negligence on the part of the intestate, not only initial, but concurrent, and subsequent to any negligence of the defendant's servants. Practically all of the witnesses, including the plaintiff's, who were a much greater distance from the train than the intestate, heard the train, which was making a great noise, and, in the absence of proof of a defective hearing, it is almost, if not quite, a conclusive presumption that she heard the train and knew of its approach, while the undisputed evidence shows that she was looking right towards the train, and saw it in time to escape. In other words, this record discloses either a case of suicide, but more probably a case where the intestate knew of the approach of the train, but preferred taking a chance in crossing ahead of same to waiting until it passed, and misjudged the speed and time essential to do so.
The case of A. G. S. R. R. v. McWhorter,
The trial court did not commit reversible error in ruling upon the evidence. In the first place, the plaintiff got the full benefit of the evidence sought by those questions to which objection was sustained by the answers to those which were properly framed as to the condition of the passageway at the proper time; second, they merely sought evidence to establish the frequency with which the track was crossed, and, as above demonstrated, even if it was such a populous crossing place as to constitute an element of wantonness, the evidence fails to establish all of the other essential facts. *122
The trial court properly gave the affirmative charge for the defendant, and the judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.
Addendum
Upon the original consideration of this case, we labored under the impression that the answers to the interrogatories introduced by the plaintiff, wherein it was stated that, when the fireman discovered the intestate, she was looking towards the train, was not contradicted, but upon a more careful consideration of the evidence, we find that there was sufficient dispute on this point as to make it a question for the jury as to whether or not the intestate was guilty of subsequent negligence, that is, continuing her way across after becoming aware of the approach of the train. This being a question for the jury, it was also open to them to find that the enginemen were guilty of proximate, subsequent negligence in failing to blow the whistle. True, the intestate was not far from the train when discovered by the fireman, but the train was going slowly, and it was open to the jury to find that a quick, loud blast of the whistle may have informed her of the danger in time to arrest her progress. A. G. S. R. R. v. McWhorter,
We therefore hold that the trial court erred in giving the general charge for the defendant as to the entire complaint, and the rehearing is granted, the judgment of affirmance is withdrawn, and the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, GARDNER, and MILLER, JJ., concur.
