Western Railway v. Wallace , 170 Ala. 584 ( 1911 )

ANDERSON, J.

The injury occurred at a railroad crossing, and the statutee (section 5474 of the Code of 1907) requires the trainmen to bring the train to a full stop within 100 feet of such crossing, and not proceed until they know the way to be clear, hut this provision is not applicable when such crossings are regulated as therein provided. The proof shows that the crossing in question was not so regulated as to relieve the defendant’s trainmen of the duty of stopping within 100 feet thereof, and the trial court -did not err in giving charge 1, requested by the plaintiff.

Charge 3, given at the request of the plaintiff, merely postulated a recovery upon proof of the averments of the third count of the complaint, and which said count charges willful or wanton misconduct.—L. & N. R. R. Co. v. Bowen, 121 Ala. 226, 25 South. 609. There was proof in support of the complaint, and it was a question for the jury as to whether or not the plaintiff was guilty 'of proximate contributory negligence. The plaintiff’s proof shows that the street car was stopped within 20 feet of the crossing, and that, when they proceeded to cross, the way was clear, and while they may have seen the box car, which came in sight after the stop and while they were proceeding to cross, it was a question for tbe jury as to whether or not they should have stopped or attempted to clear the track before the bos car reached them. The trial court did not err in refusing charges 1, 2, and B requested by the defendant.

There was no error in refusing charges 4, 5 and 6, requested by the defendant, as it was a question for the jury as to whether or not the defendant’s servants were guilty of willful or wanton misconduct in dropping the car in the siding under the circumstances detailed, knowing that the place was a public crossing, and that people and street cars were liable to cross at any time.

Charges 12, 14, and 16, requested by defendant, seek to defeat a recovery upon the theory of contributory negligence, and ask a finding for the defendant, thus ignoring wanton count 3, and to which contributory negligence was no defense.

It is true the collision occurred at a railroad crossing as covered by section 5474 of the Code of 1907, and said section does not require the ringing of the bell or the blowing of the whistle, but it also occurred at a public road crossing covered by section 5473, and which does require ringing the bell and blowing the whistle. The street car track was on Court street, which said street crossed defendant’s track, and, while it was a railroad crossing, it was a public road crossing also, and it matters not how the plaintiff was traveling the street, whether on foot, horseback, in a buggy, automobile, or street car, he was entitled to the protection of section 5473 of the Code. The fact that the street car line was on the street did not change its character as a highway, nor did the manner of going along it in a street car deprive the plaintiff of being a traveler along or upon the said street. This was but a modern but legitimate user of the street as a public highway. — Baker v. Selma St. R. Co., 130 Ala. 474, 30 South. 464; Southern R. Co. v. Williams, 143 Ala. 212, 38 South. 1013. There was no error in refusing charge' X, requested by the defendant.

Whether the plaintiff was or was not an employee of the defendant, he claimed damages for lost time, and the amount he was earning at the time of the injury was a. pertinent factor to be considered in determining his damages.

The only authority given this court to review the action of the trial court, as to new trials, is section 2846 of the Code of 1907, and which relates to the action of the court either in granting or refusing the motion, and not for declining to consider same. If the trial court improperly declined to pass upon the motion, which we do not decide, the movant had its remedy, but which is not properly presented or involved in this appeal.

The judgment of the city court is affirmed.

Affirmed.

Dowdell, C. J., and Somerville, J., concur in the opinion.