Harris v. Nashville C. & St. Louis R. R. , 153 Ala. 139 ( 1907 )

ANDERSON, J.

— It was held by this court, when this case was here before, that the child was a trespasser and the defendant was not liable for a failure to keep a lookout. — N. G.. & St. L. Ry. v. Harris, 142 Ala. 249, 37 South. 794, 110 Am. St. Rep. 29.

The only other point made by appellant’s counsel for a reversal of this case is that the trial court erred in giving the affirmative charge for the defendant, upon the theory that the evidence shows that defendant’s servants , after discovering the peril of the child, did not use all means known to skillful engineers to stop the train. If it be true that the defendant so failed, and said failure was the proximate cause of the injury, or if there was evidence from which the jury could draw an inference that the defendant’s servants failed to use all means “known to skillful engineers” to stop the train after discovery of the child, then the affirmative charge should not have been given in favor of the defendant. When this case was here before the court held that the evidence showed that everything possible was done to stop the train, and that defendant was entitled to the affirmative charge. The engineer and fireman testified upon the former trial that everything in their power was done to stop the train upon discovering the child — “the track was sanded, the brakes were applied, and the engine was reversed.” Upon the second trial, and the one from which this appeal was taken, the engineer testified upon direct examination just as he did on the first trial, but stated, further, upon cross-examination, that the wheels were merely brought to a stand, and that nothing was done to give them a backward or reverse movement. He admitted that he made no effort to work the driving wheels of the engine backward; “that the wheels of the engine were not caused to revolve in the reverse direction to which said train was going. He did attempt to explain, and in fact testified, that by working the engine back the train could not be stopped as quick as if the air brakes were applied without working it back or reversing the engine.

Section 3440 of the Code of 1896, among other things, says: “He must also, upon perceiving any obstruction on the track, usé all means within his power, known to skillful engineers, such as applying brakes and reversing engine, in order to stop the train.” We understand the statute to require the doing of all things known to skillful engineers to stop the train, but that to apply the brakes and reverse the engine is simply suggestive, not mandatory. If the train could be safely and quicker stopped in some other way, it would he the duty of the engineer, under this statute, to resort to that method, and the doing of the things suggested by the statute, and omitting to do something that would sooner stop the train, would not relieve the company. The result is that if the train could be stopped quicker without reversing the engine, ex vi termini, giving the wheels a backward movement or pressure, then it would be the duty of the engineer to resort to such 'means, and not reverse the engine. This statute first appeared in the Code of 1867, and was enacted before the use of the air brake, at the time when the only expedient way to stop trains then known was by reversing the engine and applying the hand brakes. Hand brakes were never as effective as air brakes, and, considering the delay that was incident to the application of the hand brake at the time in which they were used, the quickest and most effective way of stopping the train was by reversing the engine. Consequently the only two practical methods then known by which trains could be stopped were suggested in our statute; but it was in no wise mandatory as to all times and under all conditions. The language of the statute is most guarded, and requires the engineers to use all means within their power “1mown to sMUful engineers” —not to court's aud juries. (Italics ours.) The manifest purpose of the statute is to require the engineer to do all things known to his profession or trade to safely stop the train. The engineer testified, as did the fireman, that all was done within their power to stop the train. The track was sanded, and the air brakes were applied, and the steam was shut off; but the engine was not reversed. The engineer also testified that the train could be stopped quicker by not reversing the engine when the air brakes were applied. The result is we have the uncontradicted testimony of the engineer and fireman, the only eye-witnesses, that all was done within their power to stop the train, and that what was done would stop the train quicker than reversing the engine in addition thereto. There being no evidence to dispute these facts, or nothing from which a contrary inference could be drawn, the defendant was entitled to the affirmative charge, unless we hold, as this court did in Foshee's Case, 125 Ala. 199, 27 South. 1006, that it is a matter of common knowledge that the reversal of the engine will tend to stop the train quicker, although the air brakes were applied, and notwithstanding experts have testified to the contrary. We think this a scientific question, rather than one of common knowledge, and that it is so regarded by the terms of the statute (“must use all means known to skillful engineers”), and that there is no room for the exercise of common knowledge as against the undisputed testimony of an expert.

This court, in speaking through Stone, C. J., in the case of L. & N. R. R. Co. v. Binion, 98 Ala. 574,14 South. 620, said: “It cannot be supposed that the court is familiar with the mechanical contrivance known as a brake on a railroad car, nor when or how it is liable to become out of repair. Nor can we be presumed to know what causes it to ‘stick,’ or refuse to let loose the pressure which retards the free revolution of the wheels, and, in consequence, the movement of the train. These are not matters either of judicial or of common knowledge.” But, if we are permitted to indulge the application of common knowledge, we cannot indorse the soundness of the Foshee Case, supra, in this respect. It may be that upon the first blush one may believe that, when either of two or more forces will accomplish a result, that it can be accomplished quicker by a concurrent application of or resort to all of said forces; but knowledge is not a talent or gift, or what occurs to the human mind upon the impulse, but comes from experience and investigation, and conclusions first reached are frequently changed by making a thorough investigation. We might say that it is a matter of judicial knowledge that experts have not only testified in this case, but in many others of recent years, that a train can be stopped quicker by an application of the air brake than by reversing the engine and not applying the brake, or than by doing both. — Note 4, Mayfield’s Dig., on page 681. Indeed, they have testified that the various railroads throughout the country forbid the reversing of the engine, unless the air brake is out of fix, in order to stop the train. Is it reasonable that these companies with their experience and facilities for testing the quickest way to stop a train safely, would require their employe to do so in a manner known to be a slower way, with a full knowledge of the penalties entailed for failing to use all means known to skillful engineers to stop the train? Indulging in common knowledge acquired from an investigation, but only to the extent of discussing the soundness of the Foshee Case, we find that it is not only the opinion of experts that the train can be stopped quicker by applying the air brakes and not reversing the engine than by doing both, but that repeated tests have been made and the result had clearly demonstrated that the application of the air brake alone is the quickest way to stop the train, provided, of course, the brake is in good working order.

In the proceedings of the second annual convention of the Association of Railroad Air Brake Men we find that, after investigating the result of 100 tests to determine “the stopping power with engine reversed, with and without the use of air brakes,” the table set out is favorable to the use of the air brake alone as the quickest way of stopping the train, and the result of said investigation is expressed in the committee’s report, and from which we quote, in so far as it applies to this question: “First, The shortest reliable stops will be made by a retarding power which is most quickly developed and maintained to the highest possible limit during the entire stop, consistent with safety from skidding of wheels, such as the air brake gives, and is confirmed by records in the above table. Second. The retarding power given by the back pressure in the steam cylinders Avhen the engine is reversed fluctuates and is too inconstant to be relied on. As soon as the back pressure developed is greater than the adhesion betAveen the wheel and the rail, the driving Avheels Avill revolve backwards and lose nearly all retarding force. Trials were made throwing the reverse lever ahead a sufficient length of time to release the wheels and get them running forward again; but so much time and distance Avas lost in this effort that the stop exceeded in length that made by leaving the lever in the back motion after it had been placed there. The length of stop was the same, Avhether the cylinder cocks were opened or closed. When the engine Avas reversed Avithout brakes, the wheels did not lock rigidly. Third. The length of stop made Avith air-brakes applied and engine reversed, Avhile being longer and extremely injurious to the tire from skidding and making flat spots, is not as long as Avas expected, but is satisfactorily accounted for by the fact that the flat spot grew during the stop, and, Avith the heat developed, gave a larger and better surface to the rail for adhesion. The stop Avas longer than those made with the brakes alone, and Avas very costly. The result of these tests should determine the inadvisability of using the reverse lever in conjunction Avith air brakes.” Association of Bail-road and Air Brake Men, pages 208, 209, §§ 1, 2, 3.

If the engineer did all tilings lmown to skillful engineers to stop the train, the defendant was not guilty of negligence in this respect; and, in the absence of any evidence to the contrary, the affirmative charge should have been given for the defendant. If it is not true that what he did was the quickest way to stop the train, the plaintiff should be able to get some evidence to the contrary, and not have to rely upon the common knowledge of courts to establish an inference contrary to the unanimous verdict of men skilled in the science of operating trains. If such evidence is not obtainable, that fact alone would confirm the expert testimony heretofore given on this subject. In the absence of some proof to the contrary, this expert evidence should not be questioned by the common knowledge of courts and juries, and the case of Central of Georgia R. R. v. Foshee, 125 Ala. 109, 27 South. 1006, is overruled, in so far as it conflicts with what we here say. We do not wish to be understood as treating quotations from opinions of experts, other than those who actually testified in the case, as evidence, as it is used for the sole purpose of demonstrating the error of assuming from common knowledge that the testimony of expert witnesses as to the quickest way to stop a train was untrue.

The judgment of the circuit court is affirmed.

Haralson, Dowdell, and Simpson, JJ., concur.