Bates v. Louisville & Nashville R. R. , 184 Ala. 655 ( 1914 )

SOMERVILLE, J.

— Conceding that the testimony offered by plaintiff was sufficient to indicate simple negligence on the part of the trainmen in approaching the crossing, it is certain that on the undisputed evidence plaintiff was himself guilty of contributory negligence, as.matter of law, which proximately produced the collision.

The law applicable to the circumstances of this case, as detailed by plaintiff himself, has been repeatedly stated by this court, and we need only to refer to the cases. C. of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 212, 27 South. 1006; Same v. Barnett, 151 Ala. Ala. 407, 44 South. 392; L. & N. R. R. Co. v. Calvert, 172 Ala. 597, 55 South. 812.

It is urged, however, that there ivas evidence from which the jury might reasonably have found the engineer guilty of subsequent negligence, in that he failed to resort to the device of sanding the track in addition to the other means used for stopping the train.

The evidence shows that sand is dropped upon wet rails under a moving train to prevent the wheels from slipping on the rails. It does not appear that the wheels were slipping or likely to slip in this instance, and the only expert evidence offered on the subject was to the effect that it would have done no good, and that it was impossible to avoid the collision. This seems to be borne out by the other facts. The wagon was discovered at a distance of about 100 feet, and the train, moving at about 17 feet per second, reached the crossing in less than 6 seconds. It must have required at least 3 seconds for the engineer to cut off steam, apply the air brakes, and reverse the engine. To have then begun sanding the rails, 2 or 3 seconds before the collision, could not in any view of the case have availed anything. Indeed, it appears that the engineer was engaged in the preventive actions actually adopted up to the time of the collision.

It .is further suggested by appellant that an issue of disputed fact grows out of that phase of the evidence relating to the distance within which the train was stopped after the discovery of the wagon at the crossing; one of plaintiff’s witnesses testifying that the rear of the coach had passed about 100 feet beyond the crossing, while a number of defendant’s witnesses testified that it stopped at the crossing.

There is, however, no testimony in the record to the effect that this train should or could have been stopped within 200 feet, or within any definite distance, and the only expert testimony offered shows that it was slowed and stopped as quickly as possible under the circumstances. This evidence was conclusive upon the court on this issue, and required the affirmative charge in favor of the defendant as requested and given. — Harris v. N. C., etc., R. R. Co., 153 Ala. 139, 44 South. 962, 14 L. R. A. (N. S.) 261.

The judgment will he affirmed.

Affirmed.

Anderson, O. J., and McClellan and de Graffenried, JJ., concur.