Central of Georgia Railway Co. v. Partridge , 136 Ala. 587 ( 1902 )

HARALSON, J.

1. The assignments of error are in the refusal of the court to give general charges for the defendant and one other to be hereafter noticed.

There was no ■ error in refusing the general, charges for. defendant. Under the facts of the case, the court was not authorized, as a matter of law, to hold'that the defendant’s servants or employes were not guilty of wantonness or willfulness in inflicting injury on plaintiff.

The crossing at which plaintiff was injured was a public crossing, a right of way over which the public was entitled, as much so as the railroad itself. Whether or not the company was guilty of wantonness or willfulness, was a question properly submitted to the jury un-doi* fill tlio pviflGnce.

In L. & N. R. R. Co. v. Webb, 97 Ala. 315, it was held, that “When it is shown that the train Avas run at a greater rate of speed over a public crossing, used to the extent the evidence shoAvs the present one Aims used, in a populous city, than is permitted by a city ordinance, and Avithout regard to the regulations adopted by the city for the protection of persons using the crossing as a public thoroughfare, and in violation of the statutes of the State regulating the speed and signals to be given at such places, and there is evidence tending to show that the injury resulted therefrom-, it is proper’and necessary to admit the fact of the degree of negligence to the determination of the jury.”

In M. & C. R. R. Co. v. Martin, 117 Ala. 384, it Avas again held, that “Persons in the proper exercise of this right [of using nubile crossing] are in no sense trespassers, and Avhile it is incumbent on them to exercise due care, by looking and listening for apnroaching trains, it is equally the duty of those operating trains over such places to exercise due care to prevent such injury. If in utter disregard of. this duty and of the many restrictions imposed by the statute and’ city ordinances enacted to protect life and pronerty at such places, those in charge should xnxsh an engine voluntarily and xinnecessarilv over a public crossing, xvhere it is likely, at the time that persons are exercising this right to cross the track as a public highway, a condition or-fact, ou account .of its location in a populous city, and.tlie extent of its use as sucli, would authorize a jury to infer was knoAvn to defendant, with such reckless speed that due care in keeping a proper lookout for persons who might, he upon the track could not be had by those operating the train, or if such persons should be discovered upon the-track, could not possiby stop or slacken,its speed in time to avoid inflicting injury, and injury did result from such negligence, can it be said, as a conclusion of law, upon any safe rule, that such reckless conduct and disregard of consequences, is not the equivalent of willfulness or wantonness?” — Birmingham R. & E. Co. v. Smith, 121 Ala. 352.

In Southern Railway Co. v. Bush, 122 Ala. 487, it was said, that “While wantonness on the part of the engineer cannot be predicated on the mere fact that he ought to have seen deceased on the .trestle, or on anything short of actual knowledge, yet- this actual knowledge need not be positively or directlv shown, but like any other-fact, may be. proved by showing circumstances from which the fact of actual knowledge: is a,legitimate inference. Otherwise, in.cases of this character, this fact could never be proved except by the testimony of the engineer himself.” After referring to the conditions and circumstances tending to show that the engineer might have seen a person on the. track,- it is added, that these “are relevant. and “admissible for the purpose of proving that he did see such person, and may be properly submitted to the jury on this issue; and while no presumption arises from these facts that the. engineer did see the person on the track, yet this may be inferred from these facts by the jury whose province alone it is to decide the weight to be given facts legally in evidence and their effect on the issue, which they are admitted to prove.”- — L. & N. R. R. Co. v. Orr, 121 Ala. 497; S. & R. R. Co. v. Meadors, 95 Ala. 137; Nave v. A. G. S. R. R. Co., 96 Ala. 268; Stringer v. A. M. R. Co., 99 Ala. 410.

. 2. There was no error in refusing the charge, that although the jury might find from the evidence that the servants of defendant were guilty of wantonness in the management of the train, which, resulted in plaintiff’s injury, yet if they further found, that plaintiff was himself guilty of wanton and reckless conduct, in going on said crossing in front of said train, then their verdict must be for defendant. A railroad company, even in case of a trespasser had no right to kill him on that account, or fail' to use all preventive means to avoid doing so, after discovering his peril. Even consent of the party injured could not give the right to kill.

In the case of Stringer v. A. M. R. Co., supra, in referring to wantonness and willfulness on the part of the defendant, may be found the expression: “Proof of the latter character of negligence, will authorize a recovery although the party injured may have b.een found guilty of contributory negligence, unless the contributory negligence on his part is of the„same character as that of which defendant was guilty, in which event, he would not be entitled to a verdict.” This expression does not seem to have been necessary to the decision of the cause before the court, but, whether a dictum or not, the doctrine is unsound and clearly repudiated by later decisions of the court. — L. & N. R. R. Co. v. Orr, 121 Ala. 499; Ib. v. Markee, 103 Ala. 160, 170.

3. It is insisted that the engineer of defendant is not shown to have known of the conditions at the crossing, and, therefore, his conduct cannot be said to have been wanton or willful. A railroad company would be grossly negligent to place an engineer in charge of a train who was not familiar with the run, and it will not be inferred or presumed it did so. This inference or presumption, as bearing on the question whether the engineer knew of the conditions at the crossing, is evidently mat ter proper for the consideration of the jury. “It is presumed the master or the. person placed in charge of a hazardous business or department thereof is familiar with the. dangers, latent or patent, ordinarily accompanying the business he had in charge.” The master should inform the servant of the particular perils and dangers of the same. — Bailey Mast. Liab. 109; Wood Master and Servant, §§ 335, 354; Robinson M. Co. v. Tolbert, 132 Ala 462; 31 So. Rep. 519.

What we here say is to be taken in connection with what has been said above, as to the necessity oí the jury’s finding that the engineer was in fact acquainted with the conditions under which he was operating the train.

The motion for a new trial was properly overruled.

No error appearing in the rulings of the court, the judgment is affirmed.

Affirmed.