Mobile & Montgomery Railway Co. v. Blakely , 59 Ala. 471 ( 1877 )

STONE, J.—

In Satterfield v. Mobile Trade Company, at December term, 1876, and in Tanner v. Louisville and Nashville Railroad Company, at the present term, we declared that persons in control of steamboats or locomotive engines must employ more than ordinary skill and diligence to prevent disasters. Our language was, “ that a common carrier who-employs steam as his motive power, must bring to the service-that degree of diligence which very careful and prudent men. take of their own affairs.” And in the case of the South and North Railroad Company v. Sullivan, during the present term, we said, “ if one by his own negligence, put himself in peril, yet, if the party sought to be charged, after discovering the peril, or, after being placed in a condition -where, if diligent, he would have discovered the peril in time to avert the catastrophe, fails to exert proper diligence, which, if exerted, would probably prevent the disastei’, this is culpable negligence, to which the primary negligence of the plaintiff is remotely contributory.” And in Tanner v. Louisville and Nashville R. R. Co., supra, we said, “ If those in charge of a train, even in the rightful exercise of their skill and diligence, find a person dangerously exposed, although'such exposure was brought about by the negligence of such person, the duty of diligence resting on the officers of the train is not in the least diminished on that account. , In such case, although they will stand acquitted of all blame in this first stage of the peril, yet, when the peril has become reasonably manifest, so as to create the presumption that it was comprehended, each party must again be diligent to prevent the •catastrophe. If the person endangered be negligent at this crisis, and suffer injury which proper care and diligence could have averted, the law affords him no redress. On the •other hand, if employing proper care and diligence to escape the danger to which his own previous negligence had contributed proximately to expose him, those in control of the train fail to apply proper skill and diligence to avoid, the injury, when such skill and diligence, if promptly resorted to, might have prevented it, this is wanton or reckless negligence, for which the railroad will be held accountable. In .such case the negligence of the person injured, which first placed him in jeopardy, becomes remotely contributory to the actual injury sustained, and is no bar to the suit. This rule, however, does not apply, where the manifestation of the peril and the catastrophe are so close in point of time, .as to have no room for preventive effort.”

The foregoing contains a summary of the duties and liabilities of railroad officers and their principals, on the particular subject we have in hand. “ But this, like all other human duties, has its correlative rights and immunities. Infallibility is not exacted of those in charge of this fearful •engine of good and of evil They are required to be prudent and skilled in their particular departments; but they deal with those of their fellow-beings who have attained to years of discretion, as intelligent beings having the sense of danger and instinct of self-preservation, common to humanity. They are authorized to predicate of such, that seeing a train .approaching in dangerous proximity, they will, if of discreet .age, get off the track and place themselves out of harm’s way.”—Tanner v. L. & N. Railroad Co., supra. And they are not required to stop their trains, or even check them, when they discover such persons on the track, unless facts or •circumstances tend to show the approach of the train is not •observed by the person or persons thus seen on the track, or that they are unable to leave it. Railroad tracks are not highways for general travel, and persons can not, as matter •of right, convert them into common thoroughfares for man or beast, except at the public crossings; and there, only for the purpose of crossing, with no undue, tardiness.

Human beings are sentient, and have the reasoning faculty; .and this is the reason why different rules for railroads are prescribed for the preservation of cattle, and for the safety ■of human life. As to the former, in addition to sounding the alarm whistle, the brakes must be applied, the train checked, or stopped if need be, to prevent injury; for domestic animals know not the necessity of leaving the track. As to the latter, all that is required, as a rule, is to sound the whistle, so as to give notice of the approaching train. We have shown above that there are cases in which more is required. We need not repeat them.

Certain statutory duties are required of engineers and other persons having the control of the running of a locomotive on a railroad.—Code of 1876, § 1699. Various duties are enjoined by this section. First, he must blow the whistle or ring the bell at least one-fourth of a mile before reaching any public road crossing, or any regular depot or stopping place on such road, and continue to blow such whistle, or ring such bell, at intervals, until he passes such road crossing, and until he reaches such depot or stopping place. He must .also blow the whistle or ring the bell immediately before, and at the time of leaving such depot or stopping place. Second, he must give a like signal before entering any curve crossed by a public road on a cut where he can not see at least one-fourth of a mile ahead, and approach and pass such •crossing in such cut, at such moderate speed as to prevent accident in the event of an obstruction at the crossing. Third, he must give a like signal on entering into the corporate limits of any town or city, and continue to do so until he has reached his destination, or passed through such town or city; and the same on leaving such town or city. Fourth, he must also, on perceiving any obstruction on the track of the road,, use all means within his power known to skilful engineers, (such as the application of his brakes, and the reversal of his engines,) in order to stop the train. And the officer having control of the running of a train, who violates any of the above provisions, may be indicted and punished therefor. Code of 1876, § 4256. The foregoing contains all the statutory provisions relating to the conduct of the engineer, or officer having control of a train, that are applicable to the case made by this record. It will be seen that there is but one of the subdivisions—the second—which, in the absence of special circumstances, requires that the speed of the train be moderated. That relates to a “ curve crossed by a public road on a cut where [the engineer or officer in control] can not see at least one-fourth of a mile ahead.” To come within this clause, there must be a curve, crossed by & public road, on a cut, so that the crossing and any obstruction upon it can not be seen a fou/rth of a mile ahead. .

What are the liabilities resting on the railroad corporation, for a disregard of these rules by the engineer, or officer having control of the train? Section 1700, Code of 1876, gives the general answer to this question. It contains a special provision as to cattle or stock, which has no reference to human beings. With that question we have nothing to do in this case. It was very freely discussed in M. & O. Railroad Co. v. Williams, 53 Ala. 595.—See also South & North Railroad Company v. Jones, 56 Ala. 507. In the present case we have to deal with the question of an injury to a person—an intelligent human being. The section we are considering declares that the railroad company is liable for all damages resulting from a failure to comply with the requirements of section 1699, supra. To come within this section, the damages complained of and claimed must be the result, or consequence of the failure to perform the statutory duty. If the dereliction of duty, and the damages or injury be not, to some extent, connected as cause and effect, then the case is not brought within the statute.

In Satterfield v. Mobile Trade Company, supra, we announcd a principle which affects the question in hand in some of its phases. The substance of what we said is, that if there be a failure to perform a duty enjoined by statute, and any one suffers injury which would not have resulted, had the statutory duty been performed, this gives a right of action to the party thus injured.

Several of the rulings of the Circuit Court are not in harmony with what we have declared above. We deem it unnecessary to specify them, further than to remark that the measure of duty and liability for injury to stock found on the track, is so different from that which pertains to the safety of intelligent human beings, that charging the law applicable to one, in a trial for the other, is calculated to confuse and mislead the jury. If there was negligence, or a failure to comply with statutory requirements in the conduct of the train, then the corporation is liable, and only liable, for injury which resulted from such negligence or failure. An indictment would lie for such' omission of duty, even though harmless in its results; but no one can maintain an action for damages, unless he has suffered injury, and such injury is the result of such negligence, or breach of duty.

We think the witness Keeler laid a sufficient predicate, and should have been allowed to testify as an expert.—1 Brick. 'Dig. 877, §§ 1053, 4, 5, 7, 8; Tullis v. Kidd, 12 Ala. 648.

Beversed and remanded.