Cook v. Central Railroad & Banking Co. , 67 Ala. 533 ( 1880 )

SOMERYILLE, J.

— In Tanner’s Ex’r v. The Louisville & Nashville R. R. Co. 60 Ala. 621, and Gothard v. The Alabama Great Southern R. R. Co. 67 Ala. 114, this court has stated the doctrine of contributory negligence applicable to injuries to the person, produced by the want of proper care on the part of the servants and agents of railroad companies. Without reiterating in detail the principles there enunciated, we are satisfied to re-affirm them so far as they are germane to the points arising and necessary to be considered in this case.

In the former case, the principle, as stated by Stone, J., is indisputably correct, that when an injury is perpetrated by a defendant either wantonly, recklessly, or intentionally, the defense of plaintiff’s contributory negligence is thereby overcome and vitiated. But we do not consider that such misconduct on the part of a defendant is necessary in order to establish his liability for such injury, even where the negligence of the plaintiff has essentially co-operated to produce the damage which is the gravamen of the action. The third head note in the case of the Govt. St. R. R. Co. v. Hanlon, 53 Ala. 70, must be considered as qualified or supplemented by the doctrine settled in the above cases, which makes the liability of the defendant, in such cases, turn upon the question as to whether or not the servants or agents of the company could, by the exercise of reasonable care and prudence, have averted the injury.

Tested by these principles, charge numbered Ihree, given by the Circuit Court on request of the appellee, was erroneous. The doctrine announced in Railroad v. Hetherington, 83 Ill. 510, and other similar adjudications in that State, upon which these charges seem to have been based, does not prevail under the decisions of this court. The principle of comparative negligence, from which it originates, has been discarded by these decisions.

It is a most difficult and perplexing question as to what consequences of a negligent act, a wrong-doer can be held responsible for in damages. It was well pronounced by Shaw, C. J., in Marble v. Worcester, 4 Gray, 395, 387, to be frequently, in its relation to the whole docrtine of causation, a matter of “ profound difficulty, even if it may not be said of mystery.” It is obvious, however, that the injury must not be too remote, as being the result of secondary causes. And the damage sustained must flow naturally, legally and with sufficient directions from the alleged injury. The reason given by Lord Bacon is : “It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore, it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.” — Bac. Maxims, Reg. 1.

It is insisted by appellant, that if by the negligent failure of defendant to stop the train before it reached deceased on the trestle upon which he was walking, he was co'mpelled to swing down by his arms from the timbers in order to escape danger, and, in his attempt to recover his position after the train passed over him, he fell to the ground and thereby sustained injuries terminating in his loss of life, the defendant would be liable to the same extent as if he had been killed by direct collision with the engine or train. The evidence shows that the deceased had, as stated in the bill of exceptions, “let himself down between the ties (on the trestle), and endeavored to hang down by his hands until the train should pass over him ; that the said train did pass over him and he was unable to draw himself up on said bridge,'and fell to the ground, a distance of about fifteen feet, and died in two or three days thereafter from the effects of injuries sustained by the fall.” The charge requested to be given at the instance of appellant, and refused by the court, ignored the question of due care on the part of deceased in swinging down from the bridge and regaining his position after the train passed over the trestle'or bridge, beneath which he3had taken refuge.

It is true that a person, under such perilous circumstance, will be presumed, in the absence of any evidence throwing light upon the matter, to have observed that care and precaution which the law requires, as instinct would prompt him to due diligence in saving his life. — Railroad Co. v. Weber, 76 Penn. St. 157, (18 Amer. Rep. 407). And we may say, as a general rule, too, that “ a person is not chargeable with contributory negligence, who, when unwarned peril comes on him suddenly, acts wildly and madly. For persons in great peril are not required to exercise all the presence of mind and care of a prudent, careful man ; the law makes allowances for tliem, and leaves the circumstances of their conduct to the jury.” — Wharton Law Neg. § 304; Buell v. Railroad Co. 31 N. Y. 314; Railroad Co. v. Yarwood, 17 Ill. 509. The question of decedent’s negligence in undertaking to cross so long a trestle, when his means of escape was so hazardous, was properly submitted to the jury. And so likewise ought the question of his exercising due caution in attempting to recover his position, upon which there was evidence tending to throw some light. This was withdrawn from their consideration by the charge in question. It was, for this reason, misleading, and its refusal was not error — Railroad Co. v. Hetherington, 83 Ill. 510; Thrash v. Bennett, 57 Ala. 156; Hammil v. Brown, 60 Ala. 499.

The safety of the traveling public demands that the right of way of a railroad company should be unobstructed, and persons ordinarily who walk along or upon such ways are trespassers. In Railroad Co. v. Godfrey, 71 Ill. 500, the court said : “ The right of way was the exclusive property of the company, upon which no unauthorized person had a right to be, for any purpose. The plaintiff was traveling upon defendant’s right of way, not for any purpose of business connected with the railroad, but for his own convenience as a footway in reaching his home. . . There was nothing to exempt him from the character of a wrongdoer and trespasser in so doing, further than the supposed implied assent of the company, arising from their non-interference with a previous like practice by other individuals.” The engineer is under no duty to stop or check his train when one is observed on the track of the road, where he can step readily aside, or otherwise reasonably escape from danger. “ If he were required to check the train at every such occurrence, it would become an intolerable grievance.” — 1 Redf. on Railways, § 133, note. But the duty is otherwise where the trespasser does not appear to be apprised of the impending danger, or, from any cause, is unable to leave the track.— Tanner v. Railroad Co. 60 Ala. 621, 640.

There was no error in giving charge numbered one and two as requested by defendant, as it harmonized with these principles. The seventh charge was obviously correct, under the uniform rulings of this court in all cases where the point presented has been raised. The law exacts of railroad companies, and their servant, only that degree of diligence which very careful and prudent persons take of their own affairs. Infallibility is neither expected, nor required.— Gothard v. Alabama Great So. R. R. Co. 67 Ala. 114.

Section 1699 of the Code, (1876) requires engineers or other persons having the control of railroad locomotives or trains “ to blow the whistle or ring the bell, at least one-fourth of a mile before reaching any public crossing, or any regular depot or stopping place on such road,” and to so continue until such destination is reached or passed. The evidence shows that Cantelo’s Crossing was not a public road, and that it was the habit of the company to stop at this point only for the purpose of taking on or putting off any passenger who so desired, and that those in charge of trains would stop at other places for the same purpose. This was not a “ regular depot or stopping place,” within the contemplation of the statute.

When a defendant or plaintiff requests a charge in writing and it is refused by the court, it avails nothing for the opposite party to “ withdraw all objections ” to it. The court must pronounce its own rulings, being guided alone by a sense of judicial duty, which regards the correctness or incorrectness of the legal proposition submitted, as gauged by the law. No charge should be given which is erroneous, though favored by both litigants, or their counsel. The plaintiff, however, had a right to request this rejected charge in the same manner that he could any other one which was in writing, as required by the statute. The charge numbered four in the record, concerning which these proceedings were had, was incorrect under the principles above discussed, and was properly refused.

The judgment of the Circuit Court is reversed, and the cause is remanded.