51 So. 959 | Ala. | 1909
Appellant sued to recover damages for the wrongful death of his intestate. The action is under our familiar homicide statute. The complaint contained six counts. Count 1 relied on simple negligence. The other counts declared on wanton negligence and willful injury. The wrongful act complained of in each count is that defendant ran one of its trains or engines against plaintiff’s intestate, thereby killing him. The venue is a public street crossing in the city of Gadsden. The time was 8 o’clock at night, on May 27, 1907. The train alleged to have killed the intestate was a regular daily passenger train, coming into Gadsden at this hour. Each count alleges that intestate was crossing or attempting to cross the defendant’s railroad track at a public street crossing in the city of Gadsden at the time of the injury. The defendant pleaded the general issue and contributory negligence to the first count, and the general issue as to the other counts. After the plaintiff had introduced all his evidence, the defendant declined to introduce any evidence, and moved the court to exclude that of the plaintiff’s, and requested the general affirmative charge in its favor.
Therefore the important, if not the sole, question for -review is: Did the evidence show, or tend to show, that the intestate’s death was proximately caused by any wanton negligence or willful act alleged, or was it the result of, or proximately caused by, any act of simple negligence alleged, to .which injury or death intestate’s own negligence di’d not proximately contribute, or was intestate’s death, as shown by the evidence, a mere accident, for which no1 one is civilly liable? The plaintiff cqnnot, and should not, recover in this action unless the intestate could have recovered for the injury, under the same state of facts, if death had not resulted; that is, if he was guilty of such contributory negligence as "would have barred his own action for the injury had death not resulted, then that same negligence will bar plaintiff’s action "when death resulted. — Code, §2488 (27). The fact that intestate cannot tell his story as to how the injury 'happened cannot be considered to raise a presumption in plaintiff’s favor, or against the defendant. The case must be tried as if intestate were present and declined to testify, except that no presumption must be indulged against plaintiff for such failure to testify.
As to the first count, the evidence we think clearly shows simple negligence in running the train 30 miles per hour and in excess of the speed fixed by the municipal ordinance of the city of Gadsden. It was also open to the jury to infer from the evidence that there was a
The next inquiry is: Was or could it be inferred by the jury that this negligence proximately contributed to or caused the death, or was the death the result of,, or proximately caused by, intestate’s own negligence, did plaintiffs own evidence affirmatively show this, or was it a mere accident for which no one is responsible,, or was the jury authorized to infer wanton negligence or willful injury from this evidence, so as to avoid the contributory negligence of plaintiff’s intestate, if found to exist? The mere concurrence of negligence on the part of a defendant, with injury to the plaintiff, does not always make a cause of action for the injury. The negligence of the defendant must proximately contribute to the injury; that is, but for the negligence, the injury would not have happened. The same is true as to the plaintiff’s negligence. The mere fact that a plaintiff wras guilty of negligence when he was injured by defendant’s negligence does not defeat his action for the injury. To do this his negligence must have proximately contributed to his own injury. There is, however, a class of cases in which a plaintiff will be entitled to recover for an injury suffered when he was guilty of negligence, and when, but for his negligence, the injury would not have happened. This class of cases is where the negligence of the plaintiff precedes tiial ^ the defendant; that is, where the defendant was guilty of negligence which directly caused or proximately contributed to the injury after the plaintiff’s negligence, and the defendant, by the exercise of reasonable care after knowledge of the plaintiff’s negligence, could have avoided the injury. This class is denominated “subsequent negligence” and “last clear chance” cases. This same doctrine or rule also applies to defeat plaintiff’s
The doctrine has since spread to the United States, and has been announced, clarified, and amplified by most all the courts of the Union, state and federal. It is only necessary to state the rule or doctrine as it has been announced in this state and applied to injuries caused at railroad crossings. Some of the cases in this state seem to deny the plaintiff’s right to recover for personal injuries inflicted by a railroad at a public crossing where plaintiff himself was guilty of contributory negligence, unless the defendant was guilty of wanton negligence or willful injury; but a close examination of such cases will show- that in each the negligence of the plaintiff was concurrent and continuing to the very time of the injury, and was therefore the efficient and direct cause of the injury, without which, it being so continuing and concurring, the injury would not have happened. In these cases the negligence of the plaintiff was clearly the “causa causans.” — Frazer’s Case, 81 Ala. 185, 1 South. 85, 60 Am. Rep. 145. In Tanner’s Case, 60 Ala. 621, the rule is applied, and held to be, that the plaintiff’s negligence was no defense, if the defendant could thereafter, by the exercise of reasonable care, have avoided injuring him. In Cook’s Case, 67 Ala. 539, it is said that, where an injury is
If a person voluntarily places himself in an obviously dangerous position on a railroad track, or so near thereto as to be struck by passing trains, thereby assuming the risk, and while there continues to use no proper means of discovering the danger, or, on discovering it, continues in the dangerous position without attempting to avoid it, and, in consequence thereof, is struck by a passing train, he cannot recover, in the absence of wanton negligence or willful injury on the part of the railroad company; but if, after discovering his peril, the result of his contributory'- negligence, he attempts to avoid the injury, and the railroad company is thereafter guilty of any negligence, simple or wanton, which proximately contributes to his injury, the railroad company is liable. — Authorities, supra; Richards’ Case, 100 Ala. 365, 13 South. 944; Lee’s Case, 92 Ala. 262, 9 South. 230.
Except at public crossings and a few. other places, the track and right of way of a railroad are its exclusive property, upon which a stranger has no right to be, and to those who trespass thereupon it owes no duty as a rule, except not to wantonly or willfully injure them. But at public crossings a different rule prevails. There the public have a right to use the public street, road, or highway, to travel along it, on foot or in vehicles, and to cross the railroad track, if necessary to
A railroad which violates any of these duties imposed by statute or ordinance as to public crossings is at least guilty of simple negligence, per se, and, if the omission is established, such negligence arises as matter of law. The statute (section 5476) makes the railroad liable for all injury to persons or property from a failure to comply with the statutory duties as to crossings, and also
The mere fact that a person or property is injured. by a railroad at a public crossing does not, without more, conclusively make the railroad liable therefor. Nor does the doctrine of “res ipsa, loquitur” apply, if it did, it would speak the negligence of the plaintiff as much as that of the railroad. It is true that the same renders the railroad liable for the injury if it results from a failure to comply with the statutory regulations, and places the burden of proof upon the railroad to show a compliance with the statutory duties imposed in such cases. But the effect of the statute is to impose certain duties upon the railroad company which might
As a rule, the mere failure to comply with the duties imposed by statutes and ordinances upon railroads at public crossings constitutes only simple negligence. This has often been declared by this court. — Lee’s Case, 92 Ala. 262, 9 South. 230; Sampson’s Case, 91 Ala. 560, 8 South. 778; Martin’s Case, 117 Ala. 382, 23 South. 231; Orr’s Case, 121 Ala. 489, 26 South. 35; Mitchell’s Case, 134 Ala. 266, 32 South. 735. Yet we do not think that it is impossible for the failure to comply with these duties to be so gross, reckless, and wanton as to amount to wanton misconduct. The failure to comply with these duties, just like the failure to comply with other duties, however imposed, may be so gross, reckless, and wanton as to evince an absolute disregard of the rights of others, and an absolute indifference to the injury of persons and property; and in such cases may render the act which violates the duty wanton negligence, thus making the wanton act as culpable as if the injury had been willfully inflicted, though there be no specific intent to inflict the injury, or specific knowledge or consciousness that the particular injury would result from the wrongful act; that is, negligence may be so gross
The following has often been announced to be the law in this state as to this proposition : “To run a train at a high rate of speed and without signals of approach at a point where the trainmen have reason to believe there are persons in exposed positions on the track, as over an unguarded crossing in a populous district of a city, or where the public are wont to pass on the track with such frequency and in such numbers, facts known to those in charge of the train, as that they will be held to a knowledge of the probable consequence of maintaining great speed without warnings, so as to impute to them reckless indifference in respect thereto, would render their employer liable for injuries resulting therefrom notwithstanding there was negligence on the part
If this is true as to live stock, ought it not to be, and is it not, true as to injuries to persons at public crossings? As is said by Coleman, J., in Martin’s Case, 117 Ala. 385, 23 South. 231: “It is earnestly contended by appellant that such a rule will greatly impede commercial transactions, and directly impair the efficiency of transportation by railroads. The public and railroads have their respective rights, and are under mutual obligations at public crossings and in the use of them. The doctrine of sic utere tuo ut alienum non laedas applies alike to persons and corporations. The value of human life cannot be overbalanced by any pecuniary or public interest. Our duty is simply to declare the law.” The evidence showed that intestate was killed by a regular
Under the evidence shown by the record in this case, we-think the question of the degree of the defendant’s negligence, of its result, and of the plaintiff’s negli
We do not think that it was proper or competent for plaintiff to have the opinions of witnesses as to whether or not a person standing where the deceased was standing at the time of the injury' could distinguish the tracks of the defendant company from those of the Louisville & Nashville Railroad Company; or as to whether, on account of the relative positions of the two tracks and the lights, there was superinduced something like an optical illusion which made one track look like the other. If it be conceded that this was true, which was not the actual fact in this case, there is no evidence that plaintiff was so deceived, or any facts which would justify the inference that he was so deceived.
The judgment of the trial court is reversed, and the cause is remanded.
Reversed and remanded.