Kansas City, Memphis & Birmingham Railroad v. Weeks , 135 Ala. 614 ( 1902 )

McCELLAN, C. J.

The question propounded to Mrs. Weeks, as a witness in her own behalf: “Where was the' first point at, which the train could be seen on account of the bushes there at that point?’’ — was not objectionable. The office of the proposed testimony was to show how nearly tlu> bushes about tvliich she had testified extended along- the road which she was traveling up to the track of the railway. She had already testified that an approaching train could not be seen through these bushes. Of necessary consequence a person approaching the railway would have to clear them before he could see along the. track. The question was intended merely to fix this point of clearance with reference to the track — its distance from the track — and it called for no mere conclusion of the witness. It is the same character of question as that — “whether there was curve enough to prevent seeing along the track through there” — held to have been properly allowed in Birmingham Mineral Railroad Co. v. Harris, 98 Ala. 326, 336.

Some questions were reserved on the trial involving rulings of the trial court on proposed testimony and requests for charge's bearing solely upon counts of llie complaint upon which the court subsequently gave affirmative charges for the defendant. It is obvious that these rulings could not have prejudiced the defendant, the appellant here, and we. will not further discuss them.

Stephens, an agent of the defendant, wrote out and had the plaintiff and the persons who were with, her at the, time of the injury complained of was received, to sign certain statements as to the facts of the occurrence. In these it was set down that the plaintiff and these persons, all whom were traveling in a wagon, did not stop and look and listen for trains as they approached the track. These statements were adduced in evidence. Some question Avas made by plaintiff as to Avhether they set forth the facts as given Stephens by the persons purporting to make them, especially in relation to stopping and listening for trains; and’ the plaintiff and the persons Avith her all testified on the trial that they did stop and listen before going upon the track. Stephens was introduced by defendant to support the integrity of the statements as written out by him, and his testimony was to the effect that lie set down the facts as stated to him by these parties. Clearly the bias and interest and fairness of Stephens was involved somewhat in this connection. Plaintiff’s theory was that he had perverted what was told him in favor of the railroad company, and there was some evidence in support of this idea. Under these circumstances, we cannot doubt that it was competent for the plaintiff, on cross-examination of Stephens, to show by him that he was aware at the time he wrote the statement of the importance to the company of negativing therein that plaintiff and her companions stopped and listened before attempting to cross the track. The court did not err, therefore, in allowing plaintiff to ask him on cross-examination whether he. “knew at that time it was necessary to look and listen before you went on the track; or persons going on the track.”

On the evidence before them it was open to the jury to find that the plaintiff, approaching the railway along a public road in a two-horse wagon, stopped about fifty feed from the crossing to listen for trains, that she could not see along the track from that point because of hushes, that these bushes extended up- so nearly to the track that persons in the wagon could not see along the track until they were within about twenty feet of it, the team being within eight or ten feet of the track, that the approach to the crossing was steep, the track being upon an eight foot embankment and the approach being only twenty or twenty-five feet in length, that the approach was narrow, and its sides were steep, that it was nearly at the foot of this approach that plaintiff stopped the wagon and listened for trains, that she heard no train, and thereupon drove on up the approach, and only discovered the train when the team was in the act of stepping on the track, that the train was then one hundred and fifty or two hundred feet away and collided with her wagon before she could get it across. On this state of the case and upon the doctrine declared in Ga. Pac. R'y Co. v. Lee, 92 Ala. 262, 267-8, we hold that it was a'question of fact for the jury whether plaintiff was negligent in not stopping to look and looking for trains after the vehicle had reached a point from which she could have seen along the track.

Nor can we affirm as matter of law, assuming, as the jury had a right to find, that plaintiff’s only duty under all the circumstances Avas to stop near to the track and listen for approaching trains, that she Avas negligent in stopping to listen at the edge of the right of way, about fifty feet from the track, instead of coming nearer: That, too, was a question of fact for the jury, and not one of law for the court.

•Several charges requested by the defendant and refused were to the effect or involved the idea that although the plaintiff stopped sufficiently near the track to listen and did listen for sounds of an approaching train, but heard none, and although she was under no duty under the* particular circumstances to stop at a point from AA'hicli she could see whether a train Avas coming, yet she Avould still be guilty of negligence if a man of ordinary care and prudence stopping at the point at AA'hicli she stopped, and listening for a train, Avould have heard the approach of the train Avhich collided Avith her vehicle at the crossing. These charges Avere essentially argumentative in character; and their obvious tendency Avas to gauge Mrs. Weeks’ act in stopping and listening in respect of care and prudence or the mmse by its results and not by its inherent qualities, to hold her responsible not for AAdiat she did or failed to do, but for the failure of her act to accomplish its purpose, and this though the act itself was all the laAv required of her. The charges Avere properly refused.

The fact that the plaintiff was not driving the team on the occasion in question Aims proper for the consideration of the jury in' determining upon the AAdiole evidence AA'hether she Ayas wanting in due care in not alighting from the wagon and going forAvard on foot to a point whence she could see whether a train was approaching; but her 'failure to do so cannot bo affirmed as matter of law to have constituted negligence on her part-. The charges requested by defendant bearing on this matter were, therefore, bad.