Nashville, Chattanooga & St. Louis Railway v. Ragan , 167 Ala. 277 ( 1910 )

ANDERSON, J.

If a railroad constructs its road across a public road or highway, the duty devolves upon it to put and keep the approaches and crossing in proper repair for the use of the traveling public. — So. R. R. Co. v. Morris, 143 Ala. 628, 42 South. 17; So. R. R. v. Posey, 124 Ala. 486, 26 South. 914; Patterson v. S. & N. A. R. R., 89 Ala. 318, 7 South. 437. And the traveling-public have the right to assume that it will discharge this duty, and cannot be said to be guilty of contributory negligence in crossing the track, without first stopping and examining the condition of said crossing. Of course, they should keep an ordinary lookout, such as prudence would suggest to any traveler, and would he guilty of contributory negligence if attempting to cross after discovery of the defect in the crossing, or might be for a failure to discover said defect, should it he open and glaring. It was a question for the jury, however, in the case at bar, as to whether or not the plaintiff discovered the defect, or should have discovered it, before attempting to cross. .The proof shows that the rail on the approaching side was hut little, if any, higher than the ties or earth, hut that the rail on the opposite side was several inches above the roadbed, and it was a question for the jury to determine whether or not the defect Avas or could have been discovered before the plaintiff reached the crossing. It was also a question for the jury to determine whether or not the plaintiff was guilty of negligence in failing to stop, after the engine passed over and received a jar from crossing the last rail, and place something against the rail, so as to prevent a jar to the wagon or rear vehicle, or whether or not he could have stopped before the wagon struck the last rail. The trial court did not, therefore, err in refusing the general charge, requested by the defendant, upon the idea that its special pleas of contributory negligence had been proven beyond dispute, or upon any other theory.

There was no error in refusing charge 5, requested by the defendant. If not otherwise bad, it required too high a degree of care on the part of the plaintiff, and may have misled the jury to believing that the plaintiff was required to stop, get out, and inspect the' crossing before attempting to cross.

The trial court erred in permitting the witness Jackson to testify that the crossing was repaired two or three days after the accident. True, he did not state who made the repairs; but the jury would have naturally inferred that they were made by the defendant. While there has been some little conflict in the authorities as to whether or not evidence of repairs or improvements subsequent to the accident is admissible, the weight of authority, as well as sound reasoning, is against the admissibility of said evidence. — Ala. Co. v. Heald, 154 Ala. 595, 45 South. 686; Going v. Ala. Co., 141 Ala. 537, 37 South. 384; Terre Haute R. R. v. Clem, 123 Ind. 15, 23 N. E. 965, 7 L. R. A. 588, 18 Am. St. Rep. 303, and note; Morse v. Minneapolis R. R., 30 Minn. 465, 16 N. W. 358.

The question to the plaintiff, whether or not the guide had warned him of any danger, should not have been permitted, and the defendant’s objection thereto should have been sustained. The answer ivas but an attempt to exculpate the plaintiff of contributory negligence, not charged in any of the pleas. None of the pleas charge that plaintiff was warned of danger before attempting to cross. The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Mayfield and Sayre, JJ., concur.