Louisville & Nashville R. R. v. Loyd , 186 Ala. 119 ( 1914 )

de GRAFFENRIED, J. —

The plaintiff, E. D. Loyd, while attempting to cross the main track of the Louisville & Nashville Railroad, where it crosses one of the avenues of the town of Cullman, was struck by a passing train of the defendant, and this suit was brought to recover compensation for the damages which he suffered thereby. The plaintiff was in a wagon which was drawn by one horse. The roadbed of the defendant at the point of the injury runs north and south, and, at that point, there were three tracks, two side tracks and a main track. The main track is in the middle of the roadbed and has one side track on the east side of it and one on the west side of it. The plaintiff .was injured by a south-bounci passenger train which was coming into Cullman from the north and which struck the plaintiff’s wagon at a point about 600 feet north of the passenger station.

The evidence of the plaintiff tended to show that the avenue on which he received his injuries was one of the principal thoroughfares of Cullman, which is a town of 2,100 inhabitants, and that from 100 to 300 people crossed the avenue daily at the point where the plaintiff was struck, and that this situation had prevailed at that point the previous five years. The evidence of the plaintiff further tended to show that the plaintiff, when he reached a point about 30 or 40 feet from the western side tracks of the defendant, stopped and looked and listened for trains, and that he neither saw nor heard the train. His evidence further tended to show that some box cars were standing on the western side track immediately north of the point of the public crossing, and that these box cars, together with some stock chutes which were north of the box cars, prevented him from seeing the train as it approached from the north. His evidence further tended to show that, having stopped, looked, and listened, as above stated, he started across the defendant’s track; that when he, sitting in the wagon, passed the box cars on the side track, he immediately looked north and saw the approaching train; that the space between the side track and the main line was about nine feet in width; that, when he saw the train, the head and probably the fore feet of the horse were on the main line; that he immediately attempted to turn the horse around; and in doing so threw the hind wheels of the wagon on to or very close to the main track; that the locomotive struck the hind wheels of the wagon, demolished it, and threw the plaintiff to the ground, seriously injuring him.

The plaintiff, and some of the witnesses for the plaintiff, testified that neither the bell nor the whistle of the locomotive was sounded before the plaintiff’s injury, or that, if the bell rang or if the whistle was blown, the/ did not hear it; while some of the other witnesses for the plaintiff testified that several distinct blasts of the whistle of the locomotive were given before the plaintiff was struck. The plaintiff’s witnesses also differed in their estimates as to the distance the locomotive was, from the defendant, when his horse first appeared on the main line of the defendant. Some of them placed the distance at 600 feet. The plaintiff was of the opinion that the distance was 450 feet. All the testimony shows, however, that the plaintiff received his injuries almost immediately after the horse reached the main track. A witness for the plaintiff thus describes the incident: “As the engine of No. 1 was approaching me, I turned around, and as the engine passed me I turned to keep the dust from flying in my eyes when it came against me, and I looked south down the track. When I turned around I saw a horse entering the track at the next crossing from me. When I looked down there, the horse’s head was about in the center of the main line, and he just turned around in the act of going back the way he came. He was hitched to a delivery wagon. When I saw him he was turning south from me, turning from the train back into direction from which he came. I watched the train until it got down to that crossing. It was just momentary until it was there. It hit the hind end of the delivery wagon. The horse had turned and exposed the back end of the delivery wagon, and the pilot picked it up. It went up in the air. I saw a man on -the wagon.” The evidence for the plaintiff further tended to show that, at the time he received his injuries, the train was traveling at the rate of 30 or 35 miles per hour.

The evidence of the defendant tended to show that there was a street or road which ran parallel with the railroad and about 200 feet therefrom, and that the plaintiff, who had sitting by him an acquaintance by the name of Robertson, drove the horse in a slow trot down this road until he reached First avenue, when he turned into the avenue, and, without stopping to look or listen, drove onto the railroad track and, before he could get off it, was struck by the train. On that subject the witness Robertson testified as follows: “We went down the street until we got to the Adkins crossing and turned to the left to cross the railroad. I never have learned the street wre went dovm onto Adkins crossing; it is the street that goes by Steifelmeyer’s. It is a street that runs parallel to the railroad on the east side of it. The street looks to be just reflecting over the main line; it looks to be nearly a hundred yards or a couple of hundred feet, or something like that. I think we traveled tAvo blocks along that street parallel Avith the railroad until we got to the Adkins crossing. I don’t knoAv Avhat the distance is, not measuring or knowing anything about how Avide the streets and the blocks are. There were two blocks and two streets when I got to this other street that runs at right angles to the street I Aims traveling on, what is called Adkins crossing, and that is the crossing Avhere Mr. Loyd was hurt. When we got there, we turned down'that street to the left, and started in the direction of the railroad. Mr. Loyd was doing the driving at that time. The horse ivas going in a sloiv trot at that time. After Ave turned off that street that runs parallel Aidth the railroad and traveled across Adkins crossing, we never came to a stop that I remember anything of. We turned to the left doAvn that- little slant in a little slow trot, as Ave were from the store on, •we continued on and approached the railroad, and I was looking down tOAvards the depot, and in a moment Mr. Loyd said, ‘Look yonder!’ and then I threw my head around and spied the train, and I jumped out of the wagon. That was the only time that I remember of the horse coming to a standstill. At the time the horse came to a stop the head of the horse Avas across the first rail of the main line • he had crossed the east rail. The best I can recollect, when we turned off the street that runs parallel Avith the railroad into the street that runs at right angles, or the Adkins crossing, we could not see a train, if we had stopped and looked for some obstacles that were in the way, lumber or cars or something, until Ave Avere pretty close to the track at that time. When we got close to the track, we could have seen it some little distance. The horse Avould have to get on the track before we could see a train, the best I remember. I did not see the train but a minute, and I sailed out on the other side. It seems that just as I looked at the train it made two little blows of the whistle. I do not know how close the train was to me at that time; it looked to me like it was right on us; it seemed to me after viewing .the grounds everywhere like the train was about 150 or 200 feet from us probably. I have no idea at what speed the train was going, but we were going in a slow trot; wasn’t no fast traveling ; I reckon we were making about four miles an hour when we came to a standstill.”

The evidence for the defendant further tended to show that, at the time referred to; the train was running at about 15 to 17 miles per hour; that all proper blasts from the locomotive signaling the approach of the train had been given; that the bell was being rung; and that the horse and wagon appeared so suddenly and unexpectedly upon the track, and in such close proximity to the train, that the servants of defendant in charge of the train, by the use of all modern appliances, could not have prevented the injury. The evidence of the defendant- further tended to show that the train, at the time of the injury, was properly equipped and properly handled, and was not being run at a rate of speed greater than was usual and customary at that point, viz., about 15 to 17 miles per hour. The engineer of the defendant. testified that,.when the horse first appeared, the locomotive was so close upon him that he could do nothing to avoid the injury and that he did not attempt to check the speed of the train for lack of time. The fireman testified that he saw the plaintiff’s wagon “approching when it was about 40 feet from the track and the horse was in a trot, going right in the direction of the track. I did not do anything then but ring the bell. I just sat there and rang the bell. This horse and wagon trotted in behind some obstructions from me, cars and lumber and stuff that was piled there, and trotted out on the track in front of the engine. Not until then did. I open my mouth to tell the engineer anything about it. After the accident was the first time I said anything to the engineer on the other side, who had hold of and controlling this engine, about this man approaching the track. I told him after the accident.”

All of the evidence showed that the injury occurred about 7 o’clock a. m., on a bright day in June. The evidence further showed that the plaintiff was acquainted with the schedule of the train in question and that the train was probably ten minutes late that morning.

1. - There were two counts to the complaint. In the first count, the plaintiff alleged that his injuries were due to the negligence, and, in the second count, to the wantonness of the servants of the defendant, who, at the time of the injury, were in charge of the locomotive which caused his injuries. Both counts were sufficient and were not subject to- the defendant’s demurrer.

2. The defendant pleaded the general issue to both counts of the complaint, and four special pleas, viz., the second, third, fourth, and fifth pleas, to the first count of the complaint.

3. In plea 2, which set up contributory negligence, the defendant assumed a burden which the law did not require of it, viz., that the train was “open to ordinary observation” when the plaintiff drove his wagon into a place of danger. Before a person attempts to drive a vehicle across a railway track at a public road crossing, he must take precautionary steps to see that in so doing he will not likely receive an injury. The trial judge, on this subject, well stated the law as applicable to the evidence in this case, to the jury as follows: “As I have said, it was not only the duty of the plaintiff to stop, look, and listen, but it was his duty, gentlemen, to keep this up. It would not be a compliance with the law if at some ill-advised, place, or at some place where he could not probably hear an approaching train, to stop and to look and to listen, and then not to repeat this precaution again. It was his duty to make this a continuous act on his part until he got to that point where he was reasonably satisfied, as an ordinarily prudent man would have been, that there was no danger of an approaching train. He must not only stop, but he must listen and look; he must not only listen, but he must stop and look; he must not only look, but he must stop and listen.”

The plaintiff, as already stated, claimed that he stopped and looked and listened for the train when he was about 30 feet from the track. He knew when he drove on the track that it was then about “train time,” as he testified that he knew the schedule of this train. It was therefore plainly for the jury to say, if the plaintiff did stop and look and listen, as he claims to have done, whether he was not guilty of contributory negligence in not again stopping and looking, and — if he could not see the train because of obstructions — listening for the train then due, before allowing his horse to go upon the track.

The rules of law governing those who are in control of locomotives, with reference to the manner in which they shall operate and control such locomotives when approaching public crossings and in passing through densely populated portions of cities and towns, and the rules of law governing individuals who use such crossings and who go upon the tracks of railroads at such places, are not only rules of liability, but are rules in the interest of human life, and railroad companies and individuals are equally bound to observe those laws. Every member of the public and railroads have mutual rights and owe to each other mutual obligations in the use of public crossings.—Memphis & Charleston Railroad Co. v. Martin, Adm’r, 117 Ala. 367, 23 South. 231; Weatherly v. Nashville, C. & St. L. Railway, 166 Ala. 575, 51 South. 959; Bason v. Alabama Great Southern Railroad Co., 179 Ala. 299, 60 South. 922.

4. There was e vidence on the part- of the plaintiff tending to show Unit, when the plaintiff’s horse appeared upon the track, rhe locomotive was from 300 feet to 600 feet from First avenue. The evidence on the part of the defendant tended to rebut this evidence on the part of the plaintiff, and this question of distance was therefore one for the jury. There was evidence tending to show that lhe engineer, after he discovered the plaintiff’s peril, did nothing to stop the speed of the train. The evidence of the plaintiff tended to show that, so soon as he discovered his peril, he attempted to extricate himself by turning his horse around and getting away from the track; that he had reversed his wagon and was in the act of getting into a place of safety when the hind wheels of the wagon were struck by the passing, locomotive. The theory of the plaintiff is that while the engineer, when the horse first came in sight of the engine, might not have had time, by quick action, to completely stop the engine before reaching the avenue where the injury occurred, nevertheless he did have time within which to- materially diminish the speed of his train before reaching First avenue, and that, if he had done so, the .plaintiff would have had time to get away from the point of danger.

We are of the opinion that this phase of the case also-presented a question of fact for the determination of the jury. If the plaintiff negligently drove upon the track without looking and listening as required by the law, and by this act of negligence found himself in a place of danger, and then undertook to extricate himself— and all the evidence tends to show that -the plaintiff did,, upon the discovery of his peril, attempt to extricate himself — and if the engineer of the defendant discovered this situation of the plaintiff in time, by the prompt use-of proper appliances, to prevent the injury, and failed to do so, then the plaintiff was entitled to recover under-the first count of the complaint.—L. & N. R. R. Co. v. Calvert, Adm’r, 172 Ala. 597, 55 South. 812.

“If a person voluntarily places himself in an obviously dangerous position on a railroad track, or so near-thereto as to be struck by passing trains, * * *■ but if, after discovering his peril, the result of his contributory negligence, he attempts to avoid the injury, and the railroad company is thereafter guilty of any negligence, simple or wanton, which proximately contributes to his injury, the railroad company is liable.”—Weatherly v. Nashville, C. & St. L. Railway, supra.

5. There was, as we have already said, evidence on the part of the fireman that he saw the plaintiff when. 30 or 40 feet from the track, driving the wagon in a slow trot in the direction of the track; that the wagon disappeared from view, and then suddenly reappeared. The fireman testified that he was then ringing his bell and that he did not notify the engineer of the fact that-he saw the plaintiff until after the injury. It was, under all the evidence, for the jury to say whether, if the fireman saw the palintiff as he claims to have done, he-had the right to presume that the plaintiff had also seen the train, and that, when the plaintiff disappeared from the fireman’s view — if that was a fact — then whether-the fireman did not have the right to presume that the-plaintiff had stopped and was waiting for the train to pass. In other words, it was for the jury to say, .under-all the evidence, whether the failure of the fireman-to notify the engineer of the plaintiff’s presence was or was. not an act of negligence on the part of the fireman.

6. If it was true, as claimed by the plaintiff, that the point at which he was struck was an unguarded crossing over one of the principal avenues in a populous district of the town of Cullman; that from 200 to 300 people were accustomed to cross there daily; that the western side track had so many box cars stored upon it as to obstruct the view of those who desired to cross that avenue at the named point from the western side to the eastern side of the avenue; that, without signaling his approach by blowing the whistle or ringing the bell, the engineer ran his locomotive across that point at a rate of speed of from 30 to 35 miles an hour — then, if the engineer knew of the conditions and above-mentioned surroundings of said crossing, the question as to whether, in this case, the engineer, on the named occasion, was guilty of that degree of reckless indifference to consequences as amounted to an act of wantonness was a question for the jury.

“To run a train at a high rate of speed and without signals of approach at a point where the trainmen have reason to believe there are persons in exposed positions on the track, as over an unguarded crossing in a populous district of a city, or where the public are wont to pass on the track with such frequency and in such numbers, facts known to those in charge of the train, as that they will be held to a knowledge of the probable consequence of maintaining great speed without warning, so as to impute to them reckless indifference in respect thereto, would render their employer liable for injuries resulting therefrom notwithstanding there was negligence on the part of those injured, and no fault on the part of the servants after seeing the danger.”—Weatherly v. Nashville, C. & St. L. Railway, supra.

In the instant case the engineer testified to the facts from which the'jury were authorized to infer that the engineer in charge of the locomotive knew of all the surroundings at the point of the injury.

(6) Section 5473 of the Code of 1907 provides, among other things, that an engineer or other person in control of a locomotive on any railroad must blow the whistle or ring the bell at least one-fourth of a mile before reaching any public road crossing or any regular station or stopping place and continue to blow the whistle or ring the bell, at short intervals until such crossing has been passed or station reached. It also provides that he must blow the whistle or ring the bell, at short intervals, on entering into-, or while moving within or passing through any village, town, or city.

This court has held that a negligent failure of the engineer to observe the above statutory requirements is an act of simple, but not of wanton, negligence.-—Central of Georgia Railway Co. v. Freeman, 134 Ala. 354, 32 South. 778.

The town of Cullman, at the time of -the plaintiff’s injuries, had in operation the following ordinance: “Section 191. Any person who causes, permits or suffers locomotive engine to run at a greater rate of speed than eight miles an hour, when running forward, and four miles per hour, when running backward, between First street and Seventh street in said town, or who causes, permits or suffers any locomotive, engine or train to run or move in the nighttime without having a headlight, or who shall suffer any locomotive or train to run at any time without causing the usual signals to be given continuously by ringing the bell, must on conviction be fined not less than five nor more than fifty dollars.”

In so far as the speed of a train is concerned, the above ordinance has no operation beyond the limits embraced within the description “between First street and 'Seventh street in said town.” The description does not embrace the territory occupied by “First” and “Seventh” streets, but only the territory between those streets. “The word 'between’ has different meanings, according to the use to which it is applied. In measuring streets it excludes the objects which bound it. Webster describes it as 'the immediate space intervening, without regard to distance,’ and gives as an instance the phrase 'New York is between Boston and Philadelphia’; also, 'Pennsylvania is between New Jersey and Ohio,’ and 'the Delaware river is between Pennsylvania and New Jersey, but neither is a part of the other.’ A street railway company, authorized by its charter to lay its track on two streets, with a right to lay a connecting track on any street between two intersecting streets which are known as the termini of its tracks, does not thereby .acquire a right to lay a connecting track on either of the intersecting streets known as the termini. The word 'between’ excludes the termini.—Philadelphia v. Citizens’ Pass. Ry. Co., 10 Pa. Co. Ct. R., 16, 20.” 1 Words & Phrases, p. 768.

In so far as the above-quoted ordinance provides a penalty, however, for one who suffers “a locomotive or train to run at any time without causing the usual signals to be given continuously by ringing the bell,” the ordinance covers the entire town of Cullman.

We are inclined to think that the plaintiff, when he introduced the ordinance, did so with the idea that every provision in the ordinance applied to First avenue. He introduced it as a -whole, and the only objection which the defendant interposed to its introduction was that “the accident happened on First avenue and the ordinance offered applies only between First and Seventh avenues.” This objection, going to the introduction of the ordinance as a whole, was not well taken. The ordinance applies to all the territory embraced in the corporate limits of the town of Cullman, and, while not set up in the count charging simple negligence and therefore admissible for no purpose under that count, it was, in so far as it related to “ringing the bell,” admissible as evidence in support of the count charging wantonness.—Yarbrough v. Carter, 179 Ala. 356, 60 South. 833.

While one of the provisions of the ordinance — -the provision relating to the speed of trains — applies only to a limited portion of the town, it is a familiar proposition that, when a general objection is taken to the introduction of evidence as a whole, a part of which is admissible, the objection falls. The entire ordinance was not subject to the particular objection, which the defendant interposed to its introduction, and the trial court cannot be put in error for admitting it.

7. That part of the ordinance which related to the speed of the train had, as we have already said, nothing to do with the speed of the train until after it had crossed First avenue, the point where the plaintiff received his injuries. The trial court, in his charge to the jury, indicated that the entire ordinance covered the space occupied by First avenue. This portion of the charge of the court to the jury is not so presented to us that we can review it.

We find, among other exceptions which the defendant reserved to the oral charge of the court, the following which we quote from the record: “At the conclusion of the oral charge of the court, the defendants then and there, in open court, and in the presence of the jury and before it retired, excepted to the following part of the oral charge of the court, ‘Outside limits of both of those streets.’ ”

It appears from the record that, after the trial court had concluded its ora.1 charge to the jury, the court made to the jury the following statement: “Gentlemen of the jury, I charged you with reference to the ordinance in this town. At the suggestion of the attorneys, it is possible that the corporate limits of the city may extend beyond First and Seventh streets. Whether it does or not, this ordinance only affects the portion of the territory covered by First and Seventh streets between the outside limits of both of those streets going north and south.”

We. presume that the expression, “outside limits of both of those streets,” excepted to as above stated, re-, ferred to that expression which appears in the above' quoted excerpt.

In one aspect of this case the above-quoted excerpt was more favorable to the defendant than it should have been. The ordinance — except that part of it which relates to the speed of trains — applies to the whole of the town of Cullman. In so far as the speed of the trains is concerned, the ordinance covers the territory between First and Seventh avenues, and not the avenues themselves. As the ordinance — except as to one of its provisions — covers the whole town of Cullman, it cannot be truthfully affirmed that the court misstated the law in the above-quoted excerpt from the oral charge, and the trial court cannot be put in error on that account. For this identical reason, the court cannot be put in error for refusing to give to the jury the following written charge which the defendant in writing requested it to give to the jury: “I charge you, gentlemen, that the municipal ordinance introduced in evidence has no bearing on the facts of this case.” If the defendant had requested the trial court to charge the jury’ that so much of the ordinance as related to the speed of trains had no bearing upon the facts of the case, a different question would have been presented by the exception.

It must be remembered that the provision in tbe ordinance requiring, under a penalty, that moving locomotives should, while in the town of Cullman, give the usual signals by “continuously ringing the bell,” was not without its importance in this case, on the subject of wantonness. Our statutes — section 5473 of the Code ■ — does not require the bell or the whistle, at the places named in the statute, to be “continuously” rung or blown, but only “at short intervals.” The ordinance requires the bell to be “continuously rung” by a locomotive while in the town of Cullman. We see nothing in the ordinance which is unreasonable, nor why it should not be enforced. In the instant case it was the high rate of speed coupled with the absence of signals of approach which constituted the claimed wantonness on the part of the engineer.

• The ordinance was admissible for the purpose indicated. If the trial court had, in an appropriate way been called upon by the defendant to limit the ordinance to the purpose indicated and had refused to do so, or if, by an appropriate exception, that part of the oral charge of the trial court which permitted the jury to consider the ordinance in conection with the rate of speed of the locomotive at the place of the injury had been brought before us, we could then, appropriately, consider whether, under all the circumstances surrounding this case, a reversible error was, as to this matter, committed on the trial.

8. All of the members of this court have devoted to this case much time and given to it much consideration. There was some evidence in the case from which the jury had the right to infer that on the named occasion the plaintiff suffered from what, in law, amounted to wantonness on the part of the defendant’s servants, and there was some evidence in the case which challenged the truth of the issues presented by each of defendant’s pleas. When there are disputed issues of fact, it becomes the-duty of the jury to ascertain the truth and, having done that, to settle the issues in dispute.

We find no reason why, upon the assignments of error presented by this record, the judgment of the circuit court should be disturbed. The judgment of the .court below is affirmed.

Affirmed.

All the Justices concur, except Mayfield, J., who dissents.