Gothard v. Alabama Great Southern R. R. , 67 Ala. 114 ( 1880 )

SOMERVILLE, J.

— In every action for damages, where the defense of contributory negligence arises, the question always to be determined is, whether the negligence of the plaintiff contributed proximately to the injury of which he complains. It is not essential that he should have been the cause of the injury. It is sufficient to defeat a recovery, if the plaintiff could have avoided the injury by the exercise of reasonable or ordinary care and prudence, unless, perhaps, in those cases where the misconduct of the defendant, which produces the injury, is wanton, reckless or intentional. Shearman & Redf. on Neg. § 34; Wharton’s Law Neg. § 300.

The doctrine is properly stated by Stone, J., in Tanner’s Ex’r v. Louisville & Nashville R. R. Co. 60 Ala. 621. The rule, as there settled, is, that although a plaintiff may be at fault in exposing himself to peril, yet if he uses proper diligence in escaping when the danger becomes apparent, and the servants of the company fail to use all the proper means in their power by the exercise of which the danger might be avoided, the .railroad company is liable for the injury proximately produced, and the original negligence is no defense to the action.

The principle is stated as follows, in Field on the Law of Damages, § 170: “ The plaintiff cannot recover, notwithstanding the negligence on the part of the defendant, if he has so far contributed to the accident, by the want of ordinary care, that but for that, the accident would not have happened; but, though the plaintiff has so contributed to the accident, he is not disentitled to recover if the defendant, by ordinary care, could have avoided the consequences of the plaintiff’s neglect, and when, but for the plaintiff’s negligence at the time, he might have escaped the consequences of the defendant’s negligence, he cannot recover.” This rule is correct as a general one, but more than ordinary care is required of those having the control of steam-engines and the management of railroad trains. The law exacts, in such cases, a care and diligence proportionable td the hazard of the enterprise, which has been declared by this court to be “ that degree of diligence which very careful and prudent men take of their own affairs.” — Railroad v. Waller, 48 Ala. 459; Tanner v. Railroad, 60 Ala. 621.

In the case at bar, as the evidence tends to show, the plaintiff placed himself in a position of great peril. He drove his wagon and team of oxen upon the crossing, when his view was so obstructed that he could not see the approaching locomotive, then very near at hand. It has been repeatedly held, that to walk or drive upon the trackof a railroad without looking in both directions so as to discover approaching engines or trains, is such negligence as would preclude a recovery unless the defendant could have averted the resulting injury by the exercise of all the proper means, reasonably capable of adoption at the time. — Railroad v. Hunter, 33 Ind. 335; (5 Amer. Rep. 201); Railroad v. Weber, 76 Penn. St. Rep. 157; (18 Amer. Rep. 407). Many of the adjudged cases have gone so far as to hold, that where the approach to a railroad was dangerous, because the track could not be seen beyond the point of crossing, one failing to pause and listen, before attempting to cross the track, is guilty of such negligence, per se, as to preclude any recovery, and that the question of contributory negligence should not even be permitted to go to the jury. — Field on Damages, § 175, and cases cited.

In Railroad Co. v. Godfrey, 71 Ill. 500, it was said: “ As a general rule, it is culpable negligence to cross the track of a railroad at a highway crossing, without looking in every direction that the rails run, to ascertain whether a train is approaching.” — Sherman & Redf. on Neg. § 483, and note. The same court said, in Railroad Co. v. Gretzner, 46 Ill. 74: “If a party rushes into danger which, by ordinary care, he could have seen and avoided, no rule of law or justice can be invoked to compensate him for any injury he may receive. He must take care, and so must the other party.” — Railroad Co. v. Hail, 87 Ill. 529.

The case of the Pennsylvania Railroad Co. v. Beale, 73 Penn. St. 304, was similar to the one under consideration. The line of the railroad was obstructed from the view of a traveler on a highway, who was approaching a crossing in a wagon. He failed to stop and look before he attempted to cross the track. It was held, that this was such contributory negligence as to defeat a recovery for the death of the traveler, which was produced by collision with a passing train at the crossing. It was his duty not only to stop, but to look and listen, using both his eyes and ears to discern approaching trains, and a failure to do so, the court said, was negligence per se. — Railroad v. Hetherington, 83 Ill. 510; Railroad, Co. v. Weber, supra. The principle settled in this, and other like cases, may be taken as sound, with the qualification, that the defendant would, nevertheless, be liable if, by the exercise of reasonable care and proper prudence, the accident could have been avoided or the injury averted. Button v. R. R. Co. 18 N. Y. 240 ; R. R. Co. v. McElmurry, 24 Ga. 75; Tanner v. Railroad, supra ; S. & N. Ala. R. R. v. Thompson, 62 Ala. 494.

The running of a railroad train within the limits of a city, at a rate of speed prohibited by its ordinances under a penalty, would constitute negligence. — Correll v. Railroad, 38 Iowa, 120, (18 Amer. Rep. 22). The evidence in this case showed that the speed permitted by an ordinance of the city of Birmingham, where the injury occurred, was. six miles per hour. If the defendant did not exceed this rate of speed, and the engineer was ringing the bell at the time the locomotive was approaching the crossing, when the accident in question transpired, this would prima facie be an exercise of due caution in this particular regard. — Code (1876), § 1699. There was no evidence rebutting this presumption, or tending to show that the rate of speed permitted by the city ordinance was unreasonably fast, and not duly proportioned to the danger to be apprehended of inflicting injury upon others. The case of the Nashville & Decatur R. R. Co. v. Comans, 45 Ala. 437, is hereby overruled so far as it is in conflict with this opinion, it being entirely opposed to the vast preponderance of authority.

The rulings of the Circuit Court were a clear recognition of the principles expressed in this opinion, and were, therefore, correct.

Judgment affirmed.