Tanner's v. Louisville & Nashville Railroad , 60 Ala. 621 ( 1877 )

STONE, J.

Speaking of the steam-engine, called by Mr. Justice Caruthers, of the Supreme Court of Tennessee, the “ most grand and useful improvement of the age,” and of its use as an instrumentality in travel and commerce, we, in Grey's Executor v. Mobile Trade Company, 55 Ala. 387, said, 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.” We added, that “ in this we but affirm that only very careful and prudent men should be placed in charge of such vehicles of transportation, and that they shall employ their care and prudence actively, as such men watch over their own important interests and enterprises, of similar magnitude and delicacy.” In the language quoted, we were speaking of the care and diligence required in the transportation of merchandise. For a much stronger reason, should the rule be observed in carrying passengers, because human life is by far the most cherished and valuable of earthly endowments and possessions.

Of railroads, Mr. Justice Caruthers said: “The policy of our decisions has been, so far as consistent with the safety of life and property, to encourage and protect this most grand and useful improvement of the age. But the consequences of carelessness and want of due skill in their management is so frightful and appalling, that the most strict and rigid rules of accountability must be applied, where there is any dereliction of duty. Every reasonable precaution must be used, to avoid accidents and injury to others, at the peril of strict and ample‘accountability. They enjoy almost a monopoly in the business of common carriers, wherever they exist, both as to persons and property. A necessity tol patronize them is imposed upon all, by the circumstances off the times; all other modes of travel and transportation having been superseded by this, on account of its greater ease and astonishing speed. "While, on the one hand, the courts should protect them with a strong hand against unjust demands, and injuries to their property, which popular prejudice may favor or inflict; on the other, the security ofj life and property requires, that they should be held to a] strict and skillful performance of all the duties imposed on them by law. All will agree, however, that in the management of locomotives and trains, so powerful for mischief as well as for good, the rules of liability for the destruction of life or property should be such as to impose the duty of very great care and diligence on the part of those who control them.”

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, promptly get off the track, and place themselves out of harm’s way. They have a right to assume this, for such is the conduct, such the instinct, of the commonest intelligence. For a traveller, whether mounted or on foot, to step from the track of a railroad, is, ordinarily, the work of a moment; while, to stop or check up a train in motion, involves delay, and, on fast lines, a disarrangement of schedule punctuality, which not only might disturb and delay other trains, but might also lead to collisions, with all their fearful consequences. Railroad tracks are not public highways for general travel. They are not constructed for that. They are private property, built and adapted exclusively for their own rolling stock; and no one can claim the right to be or remain upon them, as a mere legal right. Like one’s domicile, which, in common-law phrase, is called his castle — or, even, like one’s freehold, no stranger has the right to be upon it, except by permission of the owner, express or implied.

In a note to section 138, 1 Redf. on Railways, is the following forcible language; “ The practice of allowing persons to walk upon a railway track is a vicious one, and one which would not be tolerated in any State or country, where the railways are under proper surveillance and police. But, as it now is in many parts of this country, an engineer will find some person upon his track every mile, and, in some places, every few rods. If he were required to check the train at every such occurrence, it would become an intolerable grievance. If men will insist upon any thing so absurd, as to be permitted to walk upon a railway track at will, they must expect that those who are bereft of sense, but preserve the form of humanity, when they chance to come into the same peril, will perish; not so much from their own infirmities, as from the absurd practice of those who have no such infirmities. And their destruction is not so much attributable, perhaps, to the fault of the railways, as to the bad taste and lawlessness of public opinion, in making such absurd demands upon the indulgence of railways. And, if it be urged that the companies might enforce their rights, and keep people off their tracks; it would be found, we fear, upon trial, that such arguments are unsound. The companies, probably, could not enforce such a regulation, in many parts of the country, without exciting a perplexing and painful prejudice, to such an extent as to endanger the safety of their business. The only effectual remedy will be found in making the act punishable by fine and imprisonment, as is done in England and some of the American States, and in a strict enforcement of the law upon all offenders.”

But, the right of a freeholder or householder, to eject from his premises any one found there against his consent, is hedged about with many restraints, imposed for the safety and welfare of the intruder, although, in the eyes of the law, such intruder may be, technically at least, a wrongdoer. He must be first warned to depart. If this fail, then hands may be laid gently upon him to put him out; and, in the extremest case of obstinacy, only so much force may be used, as appears reasonably necessary to accomplish the object. The law so respects human life, and those feelings of self-respect which lie at the foundation of our manhood, that it does not pronounce sentence of outlawry against even tbe willful], or obstinate wrongdoer. It furnishes no measurement, by which to determine the relative value of human lives. “ Thou shalt not kill,” has been a prominent canon in all civilized governments. — Shearman & Bedfield on Negligence, § 24.

The doctrine of contributory negligence was declared, long before steam was utilized as a mechanical force. It was first adapted to collisions of vessels, and of vehicles on the public highways. It was ruled that, in the adjustment of losses in admiralty proceedings, comparative negligence would be taken into the reckoning, and the burden of the loss adjusted accordingly. But, in suits at common law by one party, to recover damages caused by the collision, the declared rule was, that if the plaintiff, by his negligence, contributed proximately to the injury, he could not recover, although the fault of the defendant may have greatly exceeded his own. The law court would not enter upon the inquiry. This principle did not rest on the idea, that one wrong set off the other, or that one justified the other. It was founded on the broader ground, that when the negligence of the plaintiff has contributed proximately to the injury, the damage is considered of his own producing, and it is difficult, if not impossible, to determine the quantum of injury which resulted from the defendant’s tortious or negligent conduct. The theory was, that in such case, if the plaintiff had himself done no wrong, no injury would have resulted. Therefore, to allow such plaintiff to recover in such case, would be to allow a recovery for the proximate consequences of the plaintiff’s own negligence. The rule was, however, that to constitute a good defense in bar, the plaintiff’s contributory negligence must be proximate, not remote. Wharton on Neg. §§ 300, 301; Shearman & Redf. on Neg. § 24; Railway Co. v. Whitlon, 13 Wall. 270; Same v. Gladmon, 15 Wall. 401; Johnson v. Hudson Riv. R. R. Co., 20 N. Y. 65; Ernst v. Same, 35 N. Y. 9; Renwick v. N. Y. Central R. R. Co., 36 N. Y. 132; Parker v. Adams, 12 Metc. 415; Shaw v. Boston & Worcester R. R. Corp., 8 Gray, 45; Wynn v. Allard, 5 Watts & Serg. 524; Railroad Co. v. Aspell, 23 Pa. St. 147; Reeves v. Del. L. & Western R. R. Co., 30 Penn. St. 454; Toledo & Wab. R. R. Co. v. Goddard, 25 Indiana, 185; Ill. Central R. R. Co. v. Phelps, 29 Ill. 447; Same v. Weldon, 52 Ill. 290.

A qualification of the doctrine has been affirmed, to the effect that, notwithstanding each party may have contributed proximately to the result, yet, if the defendant wantonly, recklessly, or intentionally brought about the result, mere negligence in the plaintiff, contributing proximately to it, will not bar his right of recovery.

Legal principles, framed for one state of society, for one state of mechanical development, are not necessarily adapted to a more advanced development. Progress in industrial arts requires a modification of judicial rules. The steam-engine has revolutionized labor and commerce, and has made it necessary to ordain a new legal system for its protection and government.

In most cases of railroad accidents, the conduct, from which negligence is sought to be inferred, presents itself in at least two stages ; first, in placing parties in a situation of peril; second, in employing or not the proper means to avert the impending danger. Diligence is required of both parties — the railroad employees, and the person endangered— through all the stages; and the negligence of one party does not excuse the other from the employment of proper diligence, until the danger be passed. 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 leave no room for preventive effort.

As we understand the rule of contributory negligence, it has been modified substantially, as we have indicated above. Wharton, Law of Negligence, § 300, says: “ If the defendant is guilty of gross negligence, he can not set up a trifling negligence or inadvertence of the plaintiff as a defense.” Shear-man & Bedf. on Neg. § 25, after stating the general rule, that a plaintiff can not recover, if he has been guilty of proximate contributory negligence, “ so that, but for his concurring and co-operating fault, the injury would not have happened to him,” excepts from the operation of the rule cases “where the direct cause of the injury is the omission of the other party, after becoming aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences of such negligence.” In 2 Bedf. on Bailways, § 177, it is said: “ If the defendant is guilty of a degree of negligence, from which the plaintiff, with the exercise of ordinary care, can not escape, he may recover, although there was want of prudence on his part; and in many cases, the plaintiff has been allowed to recover for the gross negligence of the defendant, notwithstanding he was, at the time, a trespasser upon the defendant’s rights.”

In the case of Tuff v. Warman, 5 C. B. Rep. N. S. 573, the English Court of Exchequer said : “ Mere negligence, or want of ordinary care or caution, would not disentitle a plaintiff to recover, unless it were such that, but for that negligence, or want of ordinary care and caution, the misfortune could not have happened; nor, if the defendant might, by the exercise of care on his part, have avoided the consequences of carelessness or neglect on the part of plaintiff.”

In Greenland v. Chaplin, 5 Exch. Rep. 243, Ch. B. Pollock said: “ I entirely concur with the rest of the court, that a person who is guilty of negligence, and thereby produces injury to another, has no right to say, ‘ Part of that mischief would not have arisen, if you yourself had not been guilty of negligence.’ I think that, where the negligence of the party injured did not in any degree contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action.” See, also, case of Tuff v. Warman, 5 C. B. Rep. N. S. 573.

In the case of Button v. Hudson River R. R. Co., 18 N. Y. 248, the court said: “ The deceased was found lying on the track. This fact was as much the proximate and immediate cause of his death, as the fact that the defendant’s cars passed over his body. The death was the combined result of both causes. The jury should have been instructed that, this being the case, the only question for them to decide was, whether, by the exercise of reasonable care and prudence, after the deceased was discovered, the driver might have saved his life.” See, also, Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310.

In Spofford v. Harlow, 3 Allen, 176, the court said : “A party may be acting in violation of some particular statute, and still be under the general protection of tbe law. A third person has no right, merely because he is thus in fault, to run into him and injure him carelessly and recklessly.” See, also, Linfield v. O. C. R. R. Co., 10 Cush. 562.

In Macon & W. R. R. Co. v. Davis, 18 Geo. 686, the court said: “But it is insisted, that if the injury in this case resulted, in whole or in part, from the misconduct of the plaintiff’s servant, that he can not recover; and this seems to have been the rule laid down in Butterfield v. Forrester, 11 East, 60, and Luxford v. Large, 5 Car. & P. 421. But this doctrine has been modified in later cases ; and in Lynch v. Nerden, 1 Adol. & El. N. S. 29, it was .held, that the defendant was liable in an action on the case, though plaintiff was a trespasser, and contributed to the mischief by his own act. . We approve of this modification of the principle, and think that it ought to be left to the jury to say, whether, notwithstanding the imprudence of the plaintiff's servant, the defendant could not, in the exercise of reasonable diligence, have prevented the collision.” To the same effect is Augusta & Sav. R. R. Co. v. McElmurry, 24 Geo. 75.

In Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 172, the court said : “ The doctrine that where both parties are in fault, the party sustaining the injury can not recover, is subject to several very material qualifications.”

In Brown v. Han. & St. Jo. R. R. Co., 50 Mo. 461, the court said: “ The fact that one person is in the wrong, does not, in itself, discharge another from the observance of due and proper care toward him, or the duty of so exercising his own rights as not to injure him unnecessarily. Tbe cases are numerous, where parties have been held responsible for their negligence, although the party injured was, at the time of the occurrence, culpable, and, in some cases, in the actual commission of a trespass.”—See, also, Kennayde v. Pac. R. R. Co., 45 Mo. 245.

In the case of Raiford v. Miss. Cen. R. R. Co., 43 Miss. 233, the court said: “ The fact that the animals were on the road, did not justify the agents and servants of the company in regarding them there unlawfully, and in violation of the rights of the company, and in any measure release the company’s servants from the observance of proper care and precaution for their safety.”—See, also, Corwin v. N. Y. & E. R. R. Co., 3 Ker. 42; Wright v. Brown, 4 Ind. 95; Davies v. Mann, 10 Exchequer, 546; Bridge v. Gr. Junction Railway Co., 3 Mees. & Wels. 244; Eckert v. L. I. R. R. Co., 43 N. Y. 502; St. Louis, A. & T. H. R. R. Co. v. Manly, 58 Ill. 300.

In the case of Owners of Steamboat Farmer v. McCraw, 26 Ala. 189, this court said : “Because a flat-boat runs at night, when she should not, or ties up in the wrong place, would not justify a steamboat in running into her, any more than a stage-coach would be justified in willfully or carelessly running over a man lying asleep in the road; and in all such cases, if the act causing the injury could have been prevented by the use of ordinary care, the failure to use it will render the party liable.”—See, also, Foster v. Holley, 38 Ala. 76.

In the case of Gov. St. R. R. v. Hanlon, 53 Ala. 70, the defense relied on was contributory negligence. It was decided, that an infant, before reaching years of discretion, could commit no negligence; that the negligence of the adult, having the care of him, was not his negligence ; and that, therefore, the defense of contributory negligence could not prevail against such infant. The court had said : “ The general principle, that although a defendant has been guilty of culpable fault or negligence, producing an injury, yet, if his act was not wanton and intentional, and if the plaintiff, by his own misconduct or negligence, amounting to a want of ordinary care, essentially contributed to produce the result, he can not recover, is not controverted.” This question was not necessarily before the court, and was stated as a conceded proposition. The word and, between the words wanton and intentional, should be or. Either wanton, reckless, or intentional injury done, overcomes the defense of contributory negligence. It is not necessary they shall all concur. To so hold, would be to decide that railroads and other corporations could probably never be held accountable for injuries caused by the misconduct or incapacity of their employees, if the person aggrieved had, by his own negligence or fault, contributed proximately to the result. It is doubtful if the doctrine of respondeat superior applies, where the servant or agent intentionally or willfully does the act complained of.—See 1 Redf. on Railways, 511, et seq. We, however, leave this question open.

We hold, then, that the defense of contributory negligence is not made good, if the plaintiff, after contributing by liis own negligence to place himself in peril, employs proper diligence to extricate himself, and the defendant neglects to use diligence, which might have prevented the catastrophe. We hold further, that in this, as in all other services required of those having the control of railroad trains, the law exacts “ that degree of diligence which very careful and prudent men take of their own affairs.”—See Ala. & Fla. R. R. Co. v. Waller, 48 Ala. 459, 463. The demurrer to the third plea should have been sustained.

If the witnesses who alone saw the disaster, which re-suited in tbe death of Mr. Tanner, be believed, he, the deceased, was on the track of the railroad, where he had no legal right to be ; had timely warning and knowledge of the approaching train, and could have got oft the track, much sooner than he seems to have attempted to do so. But for the fright of his horse, resulting in throwing him off, he would have escaped the danger. His horse did escape, which proves, at least, that he was dismounted when the train struck him. Unlike animals, often found on railroad tracks, Mr. Tanner was an intelligent human being, knew the speed and momentum of railroad trains, and should have got off the track. Doubtless he intended to do so. He possibly miscalculated his ability to reach the crossing, just ahead of him. The persons in charge of the train, perceiving by his movements that Mr. Tanner knew of their approach, were justified in supposing he would leave the track before they would come up with him. The testimony, in which there is no material conflict on this question, shows there were points at which he could have done so with safety. The law does not require that trains shall be stopped, or checked up, when persons of discreet years are seen on the track, unless, from their position or movements, or other cause, it can be inferred that they are not apprised of the approaching danger, or, from some other cause, they are unable to leave the track. Such requirements of railroads would greatly impede their business, and would do them a great wrong. When Mr. Tanner was thrown from his horse, upon the track, it became manifest that he was in peril, from which he could not probably extricate himself. It then became the duty of those in charge of the train, to use every means within their power to stop the train ; and if they failed to do so, and the jury should be satisfied that such exertions, promptly employed, would probably have arrested the train, and saved Mr^ Tanner, then the charge of negligence is fastened on the railroad, and it must make reparation.—Phila. & Reading R. R. Co. v. Hummell, 44 Penn. St. 375.

What we have said above is based on the theory, that Mr. Tanner knew of the approach of the train, and that the surface of the contiguous ground was such, that there were points at which he could have left the track. Of course, if he were in a deep cut, or on a high embankment, which rendered it doubtful if he could pass beyond them before the train would overtake him, the train officers, being supposed to know tbe topography, should at once have taken measures to avert tbe danger.

On two questions, the charges and refusals to charge in the Circuit Court were in conflict with the rules we have declared above. One is, that the Circuit Court fixed the degree of diligence required of railroad officers at too low a degree. Ordinary diligence does not meet the reasonable requirements of such travel and transportation. The other error is based on that clause which, in the case of Gov. St. Railroad v. Hanlon, supra, conjoins the words “ wanton” and “ intentional.” Either wantonness, or intention, on' the part of defendant, will overcome the defense of contributory negligence. We consider it unnecessary to apply these principles to the various rulings of the Circuit Court, as what we have said above will furnish a sufficient guide on another trial. We have attempted to declare certain exceptions, which the later adjudications have engrafted on the doctrine of contributory negligence.

What the railroad employees said,while returning to Athens with Mr. Tanner, or after they reached Athens, were no part of the res gestee, and were properly excluded.—Rigby v. Williams, 80 Penn. St. R. 107; B. Railway Co. v. Hunter 33 Ind. 335.

The Circuit Court erred, in allowing defendant to prove that there was danger to employees on the train in running over stock.—Montg. & West Point R. R. Co. v. Edmunds, 41 Ala. 667. The court also erred, in allowing proof to be made that defendant’s agents had notified persons, other than plaintiff’s intestate, not to travel on the railroad track.

The witness Brown should not have been asked, or allowed to tell, that he used “all the means he had to stop the train.” He could state what means he did use. The latter part of interrogatory 21, objected to, should have been excluded. It called for conclusions, or inferences, of the witness. Interrogatory 15 is objectionable in form, and should have been excluded. The witness should have been interrogated as to what means he did employ.

As to the questions asked defendant’s witnesses on cross-examination, with a view to their impeachment, we think the ruling of the Circuit Court can not be maintained. Large latitude should be allowed in cross-examination; and we will not say the questions should not have been allowed, aside from all purpose of impeachment by other witnesses. As a predicate for proof of prior contradictory statements made to others, they were unquestionably admissible, when time, place, and circumstance were given.

Judgment of the Circuit Court reversed, and cause remanded.