Nashville, Chattanooga & St. Louis Railway v. Vincent , 190 Ala. 91 ( 1914 )

de GRAFFENRIED, J.

The evidence of the plaintiff in this case is short, and the reporter will set it out.

(1, 2) 1. The distance between the point where the plaintiff saw the engineer and spoke to him and the point where she was injured — a distance which she fixes in her testimony as probably being about the length of the courtroom — is shown by other testimony to have been about 60 feet, or 20 steps. The plaintiff was not a trespasser, as the path which she traveled was one which the public was accustomed to use. She had a right to cross the railroad at the point where she crossed it, for it was a public crossing; but the law required her to “stop, look, and listen,” before doing so, and this she did not do. She was therefore guilty of negligence, and this negligence contributed directly and proximately to her injury. — L. & N. R. R. Co. v. Loyd, 186 Ala. 119, 65 South. 153.

(3) The engineer, under the evidence of the-plaintiff, was also guilty of negligence, in not ringing the bell of his locomotive. — Section 5473 of the Code of 1907; Central of Georgia Railway Co. v. Freeman, 134 Ala. 354, 32 South. 778; L. & N. R. R. Co. v. Loyd, supra; Bason v. A. G. S. R. R. Co., 179 Ala. 299, 60 South. 922.

(4) 2. The evidence fails to show any right of the plain-tiff to recover upon the theory of the subsequent negligence of the defendant’s agents or servants in charge of the locomotive. The engineer knew, before he started his engine that plaintiff had preceded him along the path which ran parallel with the track; but there is nothing in the evidence tending to show that he or his fireman saw the plaintiff after she committed, or while she Avas in the commission of, the particular act of negligence which proximately contributed to her injury, viz., the crossing by her of the track. The engineer cannot be held to have committed an act of subsequent negligence unless he knew that the plaintiff was attempting to cross the track, or was in possession of such facts as should have led him to know that she was on the track or in dangerous proximity, thereto-, in time to prevent the injury. This the evidence utterly fails to show — Bason v. A. G. S. R. R. Co., supra; Anniston Co. v. Rosen, 159 Ala. 195, 48 South. 798, 133 Am. St. Rep. 32; L. & N. R. R. Co. v. Loyd, supra; Blackmon v. Central of Georgia Railway Co., 185 Ala. 635, 64 South. 592.

Iu the case of Louisville & Nashville Railroad Co. v. Loyd, supra, this court said: “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.”

The evidence in this case, as it exists in the present bill of exceptions, shows that the plaintiff and the defendant have each violated a wise rule of the law, and that they are equally at fault under the law. The plaintiff therefoi*e stands helpless before the law.

The defendant was, under the evidence shown by this record, entitled to affirmative instructions in its behalf. The judgment of the trial court is therefore reversed, and the cause is remanded to the court below for further proceedings.

Reversed and remanded.

Anderson, C. J., and McClellan and Mayfield, JJ., concur.