Louisville & Nashville Railroad v. Hall , 87 Ala. 708 ( 1888 )

STONE, C. J.

We lay down the following legal propositions: When, in crossing a public highway, it becomes necessary for a railroad company to span it with a bridge, it is its duty, if reasonably practicable, to place the structure at such an elevation as that trains, with their customary employes, can pass under it unharmed—Smoot v. M. & M. Railway Co., 67 Ala. 17; L. & N. R. R. Co. v. Allen, 78 Ala. 501; Propst v. Ga. Pac. R. R., 83 Ala. 501; H. & T. Railway Co. v. Oram, 49 Tex. 341; Wilson v. L. & N. R. R. Co., 85 Ala. 269. This is not an absolute, unbending requirement, but it will yield to a reasonable extent to circumstances, as many other natural and social rights must yield to other rights and interests, which duty requires to be conserved. If inequality of surface, or other hindrance, occurring naturally, or in the proper construction or grade of the railroad track, render such elevation impossible, or greatly incommode the public in the use of the bridge, or greatly or unduly increase the expense to the railroad company, then one inconvenience must yield somewhat to the other. In such case, the bridge may be so constructed as to extend below the line of absolute safety. A bridge, constructed and maintained with proper regard to these conditions, would not, without more, be negligence. — Patterson Railway Ac. Law, § 285; 2 Rorer Railroads, 1217; Wells v. B., C. R. & N. R. R. Co., 2 Amer. & Eng. Railway Cas. 243; Rains v. St. L., I. M. & S. Railway Co., 5 Ib. 610; Clark v. Richmond & D. R. R. Co., 18 Ib. 78; Baylor v. Del., L. & W. R. R. Co., 40 N. J. Law, 23; Illick v. F. & P. M. R. R. Co., 35 N. W. Rep. 708. In no case, however, would it be permissible to so place the bridge, that brakemen on top of the train, in discharge of their duties, could not avoid danger by bending or stooping. A bridge, such as here last supposed, would be gross negligence, and per se a nuisance. — Ill. Cen. R. R. Co. v. Welch, 52 Ill. 183; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; C. & I. R. R. Co. v. Russell, 91 Ill. 298. If such bridge is so constructed as to extend below the line of absolute safety, then other duties rest on the railroad company.

The bridge in question was part and parcel of the public highway. The record affords evidence that, on the trial below, the question was considered, whether it was the duty of the defendant corporation “to blow the whistle, or ring the bell, at least one-fourth of a mile before reaching [a] public road crossing; . . . and continue to blow the whistle or ring the bell, at short intervals, until the train passed the crossing”. — Code of 1886, § 1144. That statute has nothing to do with this case. Its design was to warn and protect persons who, at a public crossing, pass across and directly on the track, and who would be in danger of being struck and run over by an approaching train, — Ala, Gr. So. R. R. Co. v. Hawk, 72 Ala. 112; N., C. & St. L. R. R. Co. v. Hembree, 85 Ala. 481.

Other questions were raised in the trial court, touching the duty of railroad companies to provide or furnish warning signals. Among these may be mentioned “whipping straps,” and placing a cautionary light on the bridge. Considered abstractly, these are scarcely legal questions. Utility, and the usage and custom of well-regulated railroads, must determine the question of duty in this regard. If useless or hurtful, it can not be negligence to reject them. So, at most, if many well-regulated railroads abstain from their use, this absolves from all duty to resort to them. By the word many, we intend to be understood as meaning not a mere excess above the adjective few. Many denotes multitude ; and while it is not the synonym of the word majority, our meaning is, that if a relatively large number, as compared with the whole number, abstain from their use, then to omit them is not, of itself, negligence. As to appliances ■ — particularly new inventions, or changes claimed to be improvements — all railroads are not required to conform to one standard. Allowance is, and must be made, for diversity of opinion; and their use by a majority of roads does not necessarily require all railroads to adopt them. — L. & N. R. R. Co. v. Allen, 78 Ala. 494; Ga. Pac. R. R. Co. v. Propst, 83 Ala. 518; Wilson v. L. & N. R. R. Co., 85 Ala. 269; Baldwin v. C., R. I. & P. B. R. R. Co., 50 Iowa, 580.

When a brakeman is placed on a freight train, running on a road with which he is not familiar, and such train has to pass under a low bridge or bridges, the law, which simply voices the sentiment of humanity, requires that notice be given him of the danger he is to encounter. This notice must be reasonable; that is, he must be reasonably instructed, so as to put him on the look-out, and on inquiry and observation, that he may inform himself of the locality of the places of danger. The whole duty is not on the railroad company. The employe must give heed to the notice and instructions given him, and must employ his senses, his reasoning faculties and his attention, alike for his own safety and the welfare of the road. If he has not been sufficiently warned or notified to enable him by proper attention and diligence to learn where the points of danger are, then this would be negligence, for which the railroad company would be liable. On the other hand, if he has been sufficiently warned or notified, and from inattention, indifference, absent-mindedness, or forgetfulness, he fails to inform himself, or fails to take the necessary steps to avoid the injury, this is negligence, and he should not recover. — Sullivan v. Man. Co., 113 Mass. 396; B. & O. R. R. Co. v. Stricker, 51 Md. 47; Dorsey v. P. & C. Con. Co., 42 Wis. 583; L., N. A. & C. R. Co., 16 N. E. Rep. 145; s. c., 17 Ib. 584; St. L., Ft. S. & N. R. R. Co., 16 Pac. Rep. 146; Wilson v. L. & N. R. R. Co., 85 Ala. 269.

It is not denied, in this case, that the space between the taller freight cars used on defendant’s road, and the timbers of the bridge, would not permit a man of ordinary height, standing erect on the top of the cars, to pass under the bridge without being struck by it. The two principal, leading inquiries, then, are — First; Was the railroad company, under the rules above declared, justified in maintaining its bridge at the elevation shown in the testimony? If it was, plaintiff was not, merely on that ground, entitled to recover, for he had no cause of action. If the railroad company, under said rules, has failed to establish its right to maintain the bridge at the elevation proved, then negligence is shown, and, unrebutted, authorized a recovery by plaintiff. That prima facie right would be rebutted, if plaintiff was guilty of proximate, contributory negligence. Second: If, under the rules we have stated, the plaintiff was sufficiently notified or warned, and from inattention, indifference, absentmindedness, or forgetfulness, he failed to inform himself, or failed to take the necessary steps to avoid the injury, this was proximate, contributory negligence, and is also a complete answer to the action. He must avail himself of the instructions given him, or furnished for his use; and taking into the account the surroundings and perils attendant upon the nature of the service he enters upon, he must bestow such care, watchfulness and caution as ordinarily prudent men would usually exercise in reference to their own safety, under like circumstances. There are perils in the very nature of such service, against which prudence can not always guard. Of these the employe takes the risk. He is guilty of contributory negligence, if, in his care, diligence, and watchfulness, he falls below the standard stated above. 3 Wood’s Railway Law, 1481: Wabash Railway Co. v. Elliott, 98 Ill. 481; 4 Amer. & Eng. Railway Cas. 651; Clark v. St. P. & S. City R. R. Co., 2 Amer. & Eng. Railway Cases, 240; Wells v. B., C. R. & N. R. R. Co., Ib. 243; P. & C. R. R. Co. v. Sentmeyer, 92 Penn. St. 276, s. c., 5 Amer. & Eng. Railway Cas. 508; St. L., I. M. & So. Railway Co. v. Rains, 71 Mo. 164; s. c., 5 Amer. & Eng. Railway Cas. 610; Clark v. Richmond & Danville R. R. Co., 18 Amer. & Eng. Railway Cas. 78; Gibson v. Erie Railway Co., 63 N. Y. 449; Laflin v. B. & S. W. R. R. Co., 106 N. Y. 136; Devitt v. Pac. R. R. Co., 50 Mo. 302; s. c., 3 Amer. Railway Cas. 533; Owen v. N. Y. Gen. R. R. Co., 1 Lans. 108; A. & W. P. R. R. Co. v. Webb, 61 Ga. Rep. 586; Same v. Johnson, 66 Ib. 259; I., B. & W. R. R. Co. v. Flanigan, 77 Ill. 265; T., W. & West. R. R. Co., 88 Ill. 112; Gould v. C. B. & Q. R. R. Co. 66 Iowa, 590. And evidence that the appliance has been long used with' safety, is competent on the inquiry of contributory negligence. Allen v. B., C. R. & N. Railway Co., 5 Amer. & Eng. Railway Cas. 620; A. G. S. R. R. Co. v. Arnold, 84 Ala. 159; Laflin v. B. & S. W. R. R. Co., 106 N. Y. 136; Loftus v. Union Ferry Co., 84 N. Y. 455; Burke v. Witherbee, 98 N. Y. 562.

The complaint contains eleven counts, and there were demurrers to each of them. Ve think the demurrers ought to have been sustained to those numbered eight and nine. Count No. 8 is meagre and defective in many particulars. Count No. 9 fails to aver that plaintiff was in the performance of any duty pertinent to his services as brakeman, when he was injured. Count 11 is defective, in that there is no duty resting on the engineer, as matter of law, to signal the approach to a low, or dangerous overhead structure. Possibly it would be well, if' the law was so framed as to require notice to be given of such approach, by a signal which exposed employes would understand. The grounds of demurrer, in reference to the counts we have declared defective, which should have been sustained, are: in reference to count 8, assignments 21 and 22; to count 9, assignment No. 23. The trial court sustained the demurrers to counts 10 and 11, and we need not consider them.

A railroad corporation is “authorized to use, or to cross, or to change public roads, when necessary, in the building, construction, or maintenance of its roadway or track, but must place the road used, or crossed, or changed, in a condition satisfactory to the authorities,” &c. — Code of 1886, § 1581 (1841). It is manifest that this statute approved March 8, 1876 — Sess. Acts, 257 — has reference to public roads in use as such at the time the road was constructed; or, at least, in case of a bridge, that it should have been erected or maintained by the railroad company. Each of tbe counts in the complaint is defective, in not averring that the bridge in question was erected or maintained by the railroad company. The 28th ground of demurrer ought to have been sustained. With this exception, each of the first six counts of the complaint is sufficient. — S. & N. R. R. Co. v. Thompson, 62 Ala. 494; E. T., Va. & Ga. R. R. Co. v. Carloss, 77 Ala. 443; Hall v. Posey, 79 Ala. 84; M. & O. R. R. Co. v. Thomas, 42 Ala. 672.

We will not consider the rulings on the demurrer to the third plea. The defendant could, and did have, under his second plea, the benefit of all defenses he could have made under the third. — 3 Brick. Dig. 405, § 20.

Proof of general notoriety is generally admissible, as tending to prove notice of a fact, when such notice is a material inquiry; but it is never competent to prove the fact itself. That must be shown by other testimony. Applied to the present case, it was not competent testimony, on the inquiry whether the bridge in question had ever before been the means of killing a person. Seeing the dead body, was no proof that the person had been killed by the bridge, nor from the top of the train. Nor was there proof tending to show that the killing took place since the erection of the bridge which struck plaintiff. The trial court erred in receiving testimony of general notoriety.

The witness Epperson showed himself to be an expert. He should have been allowed to give his opinion, and his reason for it, as to the merits or demerits of the “whipping straps” as cautionary signals, and whether or not they were generally in use on roads regarded as well regulated. It was rightly ruled, that he could not give his opinion as to the prudent management of the Louisville & Nashville railroad, or any of its constituent sections.

The general charge given in this case, as we think the trial court intended it to be understood, is, in the main, free from error. We will first premise, however, that this case was tried, as’to all the counts, on the double defense of not guilty, and proximate contributory negligence on the part of plaintiff. The effect of this double defense was, and is, that defendant denied all negligence on its part, and threw the burden of proof on plaintiff. As a further defense the defendant set up, that if found to have been guilty of negligence, then plaintiff was himself guilty of negligence, which contributed proximately to the injury he suffered. The burden was on the defendant to make good this phase of its defense. Both lines of defense being interposed to the whole action, the defense of contributory negligence was not in whole, nor to any extent, an admission that the defendant had been guilty of negligence.

Some expressions in the general charge are subject to criticism. We will quote certain passages, which possibly may have misled the jury, and, with them, will suggest such verbal alterations as will free them from all grounds of objection. The alterations are placed in brackets. They will be found to be, sometimes, merely explanatory, additional words, or phrases, while at other times, the words or phrases will be seen to be substituted for those found in the transcript. I begin with the first sentence in the first paragraph: “Which injuries [it is claimed] resulted from the negligence of the defendant, and [that] he would not have suffered [them] but for such negligence. . . The defendant, on the contrary, "seeks to excuse itself for the low bridge, and alleges] first that] it was necessary to build the bridge at the height at which it was built. . . It being the law of this State, that a person entering the employment of a railroad [has a right to expect the railroad will furnish] safe appliances, &c. In order to recover exemplary damages, it is not necessary that the defendant should have intended to commit the wrong, [if there was gross, reckless, or wanton negligence] — so gross as to evince an entire want of care,” &c.

Charges to juries should, if possible, be plain, simple, and easily understood. They should be free from obscurity, involvement, ambiguity, metaphysical intricacy, and tendency to mislead. A charge obnoxious to any of these objections, should always be refused, even though, on dissection, it may assert a correct legal proposition. The office and purpose of charges are to enlighten the jury, and to aid them in arriving at a correct verdict,' as plaiu, common-sense men. In other words, they should be made up of plain propositions of law, applicable to the tendency, or varying tendencies of the evidence, and they should go no farther. Charges thus given greatly aid juries in their deliberations.

We do not know that we comprehend the meaning and import of charges 3 and 8 of the series styled “plaintiff’s charges.” Charge No. 3 asserts, that when contributory negligence is pleaded, this is a confession “that the defendant was guilty of the culpable negligence which is charged in the counts of the complaint to which it is pleaded, except so far as the plea traverses or denies the negligence of defendant charged in those counts, or sets up facts in qualification or avoidance of such negligence.” This is an assertion, that the plea of contributory negligence admits the negligence charged, unless the plea itself — not another plea —negatives, or avoids such negligence. We have shown above that this is not the true rule. A denial of the negligence charged, or plea of not guilty, although pleaded separately, repels all presumption of confession, which arises from the plea of contributory negligence when pleaded alone. And the last sentence of the charge does not heal the error, for each of the pleas, not guilty and contributory negligence, was pleaded to the entire complaint. Freedom from negligence is not one of the essentials of the defense of contributory negligence. There must be negligence in the defendant, before the plaintiff can contribute to its injurious results.—M. & C. R. R. Co. v. Copeland, 61 Ala. 376. Charge 3 is not only erroneous as a legal proposition, but the pleading furnishes no field for its operation.

Charge 8 hypothesizes, that there was a defect in the construction of the bridge, and that such “defect arose from, or had not been discovered or remedied, owing to the negligence of defendant;” and asserts that the plaintiff is entitled to recover for the injuries received, “although he may have known that such defect existed, provided he was guilty of no negligence which proximately contributed to the injury; and provided, further, that he knew that the defendant, or some person superior to himself in the service of the defendant, knew of said defect.”

How the last proviso in this charge can become material on the inquiry of plaintiff’s contributory negligence, is not perceived. It is undisputed that, by stooping, plaintiff could have passed the bridge in safety. The two phrases, “although he may have known that such defect existed,” and “provided that plaintiff was guilty of no negligence which contributed to the injury,” are incompatible with each other, when viewed in the light of the uncontroverted testimony. Having knowledge of the low bridge, and failing to stoop in passing it, would be proximate contributory negligence, even though every employe of the railroad had knowledge of the defect. Charges 3 and 8 should not have been given.

Charge 13, asked by defendant, was rightly refused. L. & N. R. R. Co. v. Coulton, 86 Ala. 129; s. c., 5 So. Rep. 448. Charges 23 and 38 of defendant’s series ought to have been given, and charge 44, in the state of the testimony, should not have been refused. There is no testimony tending to prove gross, wanton, or reckless negligence. —S. & N. R. R. Co. v. Huffman, 76 Ala. 492; Ala. G. S. R. R. Co. v. Arnold, 80 Ala. 600; s. c., 84 Ala. 159.

Under the rules of law declared above, and in the state of the proof found in the record, each of the main questions of fact — negligence of defendant, and contributory negligence by plaintiff — was one of fact for decision by the jury.

Eeversed and remanded.