Louisville & N. R. Co. v. Bailey , 245 Ala. 178 ( 1943 )

Upon reconsideration of this cause, I am persuaded an erroneous conclusion has been reached.

This unfortunate accident occurred at a public road crossing where the track was straight. As the original opinion discloses, the crossing was not on a curve, and of course, that feature of our statute (Title 48, § 170, Code 1940), relating to speed of the train so as to prevent accidents approaching a crossing on a curve, was without application. But the trial court made reference more than once to that feature of the statute, and exceptions were duly reserved by the defendant. Looking at the matter from a practical standpoint, the jury must have been impressed with this reference by the trial judge to that feature. As I understand it, it is practically conceded that these instructions were erroneous. But the effect of our holding is that this error was without injury for the reason that the court withdrew the instruction from the jury. Had the trial judge stated to the jury that, in his opinion, a mistake had been made in this regard and that that feature of the statute had no application, I would readily agree. But such is not the case. The record discloses that counsel for the plaintiff desired the court to withdraw that feature of his instructions, and that the court then stated he thgught what he said was the law but he was willing to withdraw it. Then associate counsel for the plaintiff said that he, too, thought it was the law, but that they were willing for it to be withdrawn. Following that, the court said: "I think I am right," with other statements which are set out but are not necessary here to repeat. Later, the court withdrew the remarks.

I find myself unable to agree that this was an effective withdrawal. The jury looks to the judge for the law of the case, and the natural conclusion is that the jury understood the judge was still firmly of the opinion that was the law, but was merely willing to make a withdrawal because counsel for the plaintiff had so consented. This was a matter of some consequence, and I am persuaded it was not without its effect upon the jury.

But coming to a consideration of the merits of the case, I am further persuaded plaintiff has failed to show a right of recovery. The accident occurred at noon on a clear day. Plaintiff's witnesses testify to the automobile having stopped for a period of 15 or 20 minutes 10 or 15 feet from the track, and that they looked and listened and saw no approaching train. The track was straight for a distance of 276 feet, at which point there was a sharp curve. The train was approaching at a speed of 30 or 35 miles per hour. As to whether or not the statutory signals were given for this crossing the evidence is in dispute. Undisputedly, plaintiff's intestate was entirely familiar with this crossing.

If plaintiff's intestate stopped the car within 10 or 15 feet of the track, and if the train at that time was in full view, the denial of the witnesses that they did not see the approaching train must be put down among the impossible. Undisputedly, there was no obstruction to the view at that point, and plaintiff's intestate, driving the truck, was sitting on the left side, from which direction the train was approaching. It is a well established rule in this Court and generally recognized throughout the country that when facts are admitted which conclusively establish another fact, the mere denial by a witness of the existence of the fact so established does not and should not create that material conflict in evidence which requires the submission of the issue to the jury. This principle is found discussed with much amplification and citation of authorities in Peters v. Southern Ry. Co.,135 Ala. 533, 33 So. 332; Louisville N. R. Co. v. Moran, 190 Ala. 108,66 So. 799; Southern Ry. Co. v. Irvin, 191 Ala. 622,68 So. 139, and needs no further elaboration here.

And the authorities cited in the original opinion clearly disclose that in the instant case there was a duty to stop, look, and listen, before going across this track, and that this was a continuing duty. Numerous authorities to this effect are found cited in Schloss-Sheffield Steel Iron Co. v. Willingham, 243 Ala. 352, 10 So.2d 19; Schloss-Sheffield Steel Iron Co. v. Peinhardt, 240 Ala. 207, 199 So. 33; Johnson v. Louisville N. R. Co., 227 Ala. 103, 148 So. 822. "The duty of plaintiff to stop, look, and listen was a continuing one, which persisted to the moment of the collision." Southern Ry. Co. v. Miller, 226 Ala. 366, 147 So. 149, 151.

In Johnson v. Louisville N. R. Co., supra [227 Ala. 103,148 So. 827], it was observed: "He must stop so near to the track, and his survey by sight and sound must so immediately precede his effort to cross over it, as to preclude the injection of an element of danger from approaching trains into the situation between the time he stopped, looked, and listened and his attempt to proceed across the track. If he stops so far from the railway as that a train which could not be seen from that point could and does reach the crossing by the time he has traversed the intervening distance and gotten on the track, he negligently contributes to the resulting collision and injury. And the same is true if, though he stop at the track, he lingers there after looking and listening, and delays crossing until a train not in sight or hearing when he stopped, looked, and listened has come meantime upon the scene and collides with him when he does attempt to cross."

Under this well-known rule, therefore, if at the time plaintiff's intestate started his truck across the track, the train was not yet in sight, it was still a continuing duty on the part of plaintiff's intestate before going upon the track to see that the crossing was clear of danger from approaching trains. Indeed, one of plaintiff's witnesses testified that he called the attention of plaintiff's intestate to the train just as the truck was in the act of passing over the first rail of the track (the truck was sideswiped), thus indicating clearly that he saw too late what he could well have seen a moment earlier and the accident thus avoided. I think it, therefore, clear enough that contributory negligence on the part of plaintiff's intestate would bar recovery for any initial negligence on the part of the defendants for failure to observe the statutory signals. Southern Ry. Co. v. Hale, 222 Ala. 489,133 So. 8. The more recent case of Atlantic Coast Line R. Co. v. Flowers, 241 Ala. 446, 3 So.2d 21, is illustrative and here much in point.

If recovery, therefore, is to be had, it must rest upon the doctrine of subsequent negligence. But I am persuaded the evidence does not suffice to sustain a recovery upon this theory. Such negligence must, of course, occur only after discovery on the part of the defendant's employees that the plaintiff's intestate was in peril. The evidence is to the effect that the engineer made such a discovery only a very short distance from the crossing and that he did all within his power at that moment, which was too late. When we consider the speed of the train and the distance to be travelled — 276 feet from the curve to the crossing — and the speed of the truck as it approached the crossing, it is clear enough it was a matter of seconds only from the time plaintiff's intestate gave indication that he would not stop until the moment of impact, all of which tends to prove only the "unity of the whole transaction," as observed by the United States Supreme Court in St. Louis Southwestern Ry. Co. v. Simpson, 286 U.S. 346, 52 S.Ct. 520, 522, 76 L.Ed. 1152, quoted approvingly in Southern Ry. Co. v. Miller, supra.

I am convinced that any recovery for subsequent negligence in this case would rest upon a mere conjecture, an insufficient basis for the foundation of a verdict, as here often declared.

I, therefore, respectfully dissent.

BROWN, J., concurs in the foregoing views.

FOSTER, J., entertains the view there was no subsequent negligence shown and that reversal should be rested upon that theory.