| Ala. | Feb 26, 1910
The majority of the court are of the opinion, and so decide, that there was no evidence in this case to show wanton negligence or willful injury, and that plaintiff’s evidence showed such contributory negligence on the part of the intestate as to defeat a recovery as for the simple negligence of the defendant, and that the trial court properly gave the affirmative charges requested by defendant. The writer dissents, and is of the opinion that the trial court erred in giving the affirmative charge, and the following are only his views of the case:
The evidence in this case tended strongly to show (if it did not conclusively show!) that the plaintiff’s intestate was killed by a passenger train of defendant, as alleged, at “a public road crossing,” and at “a regular station or stopping place” on defendant’s railroad, and at “a curve crossed by a public road,” and where the engineer could not see at least a quarter of a mile, and that the engineer did not approach and pass such crossing at such speed as to prevent accident in the event of an obstruction at the crossing. The evidence did not. conclusively show that the engineer blew the whistle or rang the bell at short intervals while passing through the village, if Cliff could be said to be a village. The evidence did not conclusively show that the engineer, on perceiving the obstruction upon the track, used all the means known to a skillful engineer, such as applying brakes and reversing engine, in order to stop train. The evidence may have tended to show a compliance with some of these provisions, but not-with all, and it
Section 3443, Code 1896, is as follows: “A railroad ■company is 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, or any negligence on the part of such company or its agents; and when any person or stock is killed or injured, or other property destroyed by the locomotive or cars of any railroad at any one of the places specified in the three preceding sections, the burden of proof is on the railroad company to show a compliance with the requirements of such sections, and that there was no negligence on the part of the company or its agents.” Intestate was clearly shown to have been killed by defendant’s locomotive or cars “at one of the places specified in the three preceding sections”; that is, the evidence certainly tended to show that he was killed in a. village, at a station, and at a crossing, within the meaning of section 3440 of the Code. The statute therefore not only placed the burden of proof- upon the railroad company to show a compliance with the requirements of that, section, but also to show that there was no negligence on the part of the company or its agents. And it did not discharge this burden. It
It evidently took the position (as we learn from the brief of its counsel), first, that no actionable negligence for which it was’ liable was shown; second, if such negligence was shown by the evidence, it was conclusively shown not to have proximately contributed to the injury, but the injury was the result of, or was proximately caused by, the contributory negligence of the intestate. It is true that if plaintiff’s evidence failed to make out a prima facie case of negligence or willful injury against the defendant, of if it did so make out a prima facie case against it, but also went further and conclusively exculpated defendant from liability, by showing that defendant was guilty only of simple negligence, and that intestate was also guilty of negligence which proximately contributed to the injury complained of, the affirmative charge could have been given for defendant. It would be immaterial in such case that the proof was alone offered by the plaintiff. However,, such is not the condition of the evidence as shown by this record; but the contrary is clearly shown. The plaintiff unquestionably made out a prima facie casé for recovery under the counts claiming for simple negligence; but it did not conclusively show contributory negligence on the part of intestate. S'ome of it probably tended to show this, and some of it tended to rebut that part which tended to show contributory negligence; hence all of it together did not show conclusively contributory negligence, or so rebut all inferences, thereof. Therefore the question of contributory negligence was certainly one for the jury, and not for the court.
It is claimed by the appellee that the evidence shows that deceased flagged the train, and that his signal was
It is conceded by counsel for appellant that the evidence showed a habit of persons desiring to board westbound trains at Cliff to flag the train from the north side of the track, and then cross the track and board the train from the south side of the track. That was just what was done by deceased on the occasion when he was killed by defendant’s train, while he was in the act of re-crossing to board the train. Counsel, however, seek to avoid all possible adverse inferences from this evidence because the evidence did not show that" the engineer of this train knew of that custom or habit, or how long he had been in its service. . This might be true as to wanton negligence, but not as to simple negligence, for the statute places the burden of proof on the railroad company to acquit itself of all negligence, where the killing or injury is shown to have been at a public crossing, in a village, or at a station. It is also true that, if the engineer did not know of the custom or habit, it was for the defendant to show it. He was its agent. It was a fact resting peculiarly within the knowledge of the defendant. It was under the circumstances of this case peculiarly defensive matter. It was not necessary to disprove it, to make out plaintiff’s case; but it was necessary to prove it to make out the defense.
It is also insisted on by counsel for appellee that the evidence showed that, when deceased was running from the point at which he signaled the train to cross the track and board the train, he was running in a path which led from the station house north of the depot and track to the station, or that it intersected the road about 15 or 20 feet from the crossing; that while he was in this path he was going in a southwesterly direc
It was, however, open to the jury to infer that the engineer, if he saAV deceased Avhen he flagged, knew that deceased desired to board the train, and that he must board it from the south side, that he must cross the track so to do, and that Avhen he saw him running toward the track, and toward the road, in a path which terminated at the road, and that the road crossed the track at right angles, he Avas chargeable Avith notice that deceased Avould cross the track at the point at which the road crossed. It Avas not reasonable to suppose that he Avould continue in a straight line, Avhen the path he was traveling terminated at the road, and it Avas not at all unreasonable that he AVould turn across the track when he reached the road. Under the circumstances, that Avas the very thing to be expected. It Avas not shoAvn that deceased did anything but that all others did who desired to flag Avest-bound trains and to take passage thereon. It does seem that if the engineer saw deceased Avhen he flagged the train, and as he ran to cross the track to take passage, he must have known he Avould cross the track at the road crossing; and, if he did, it was certainly his duty not to kill him.
Under all the evidence in this case, as shoAvn by this record, the liability of the defendant for the death of plaintiff’s intestate was a question of fact for the jury, and not a question of latv for the court. — Wood’s Case, 129 Ala, 483, 29 outSh. 775; Boyd’s Case, 124
It therefore follows that the general affirmative charge whs improperly given for defendant. But in accordance with the views of the majority the judgment of the lower court is affirmed.
Affirmed.