Southern Ry. Co. v. Montgomery , 229 Ala. 456 ( 1934 )

The overruling of defendant's timely objection to the question put to the witness Garrett by plaintiff's counsel, eliciting testimony as to the volume and frequency of travel on Grand avenue and the "public driveway" leading into Wood street, intersected by the railroad tracks east of the point where intestate was killed, is the basis of the second assignment of error, and a ground of the motion for a new trial.

Count 4 avers that intestate "was struck * * * between GrandAvenue and said defendant's Woodlawn station," and plaintiff's witness, Alline Wilson, testified that the "next crossing," which could only refer to the said "public driveway," and which was west of the intersection of Grand avenue, "was a short block" about "a half block" from the place of contact. The evidence is without dispute that the catastrophe did not happen at the intersection of either of said streets and the railroad tracks, but the contact between the locomotive and said intestate occurred near the Woodlawn depot platform, a considerable distance west of both "the public driveway" and Grand avenue. This evidence called for by the question was immaterial and irrelevant to the issue presented by the pleadings.

By the averments of count 4 of the complaint, the plaintiff assumed the burden of adducing evidence going to show, not that some one was in an exposed position at the intersection of said public ways, but that her intestate was on the track of the railroad, or so near thereto as to be in peril of being injured, or that his position and movements were such as to indicate that he would be so in peril by the time the locomotive reached him, and that this peril was discovered by the engineer and fireman in time for them to have used some or all the means at their command to avert the injury. Central of Georgia R. Co. v. Lee, 225 Ala. 283, 142 So. 660; Emmett v. Alabama Great Southern R. Co., 226 Ala. 310, 146 So. 811; Southern Railway Co. v. Drake, 166 Ala. 540, 51 So. 996.

It is well settled that, if a question to a witness is obnoxious to the objection interposed to it, and the answer is responsive to the question, motion to exclude is not necessary to reserve the question for review on appeal, either under our decisions or the statute. Troy Lumber Const. Co. v. Boswell,186 Ala. 409, 65 So. 141; Gen. Acts 1927, p. 636, § 2.

However, it cannot be affirmed that the answer was responsive to the question, and in the absence of motion to exclude the court's action was not invoked as to the relevancy and competency of the answer. East Tenn., Va. Ga. Railroad Co. v. Bayliss, 74 Ala. 150.

Another predicate for an assignment of error and ground of the motion for a new trial was the giving of charge 38 at the plaintiff's request, which instructed the jury: "I charge you if you are reasonably satisfied from the evidence the fireman discovered the peril of intestate it then became the duty of the fireman of the defendant, as soon as he discovered the peril of intestate, to use, promptly and in their proper order, all of the means known to skillful firemen in his position to avert an accident."

The gravamen of count 4 of the complaint is that "said Griffin and said Newman, after becoming aware of the peril of said locomotive colliding with plaintiff's intestate, and while acting within the line and scope of their employment,negligently failed to use all the means at their command to avoid said locomotive colliding with said intestate, when bythe use of said means said locomotive would have been preventedfrom colliding with said intestate, and intestate's death wouldhave been avoided." (Italics supplied.)

The evidence presents the case in two aspects: That on the part of the plaintiff, when considered in its light most favorable to her, going to show that said intestate, after he left the end of the sidewalk on Grand avenue, walked diagonally at about 45 degrees with the track of the railroad until he reached the end of the ties next to the south rail, and then proceeded along the track on which the train was approaching at a distance of something over a hundred feet, and, while walking in this position with his back to the train, he was observed in this situation by the fireman who did nothing to warn the engineer or otherwise; that said intestate was struck in the back by the pilot beam of the locomotive and killed.

That on the part of the defendant tended to show that when the fireman first discovered plaintiff's intestate he was about midway of the space between the end of the sidewalk and the track, walking diagonally in a northwesterly direction toward the track, and was not in a place of danger, and did not come within the sweep of the locomotive until the pilot beam passed him, when he suddenly turned north and walked up against the cylinders of the locomotive.

By the quoted averments of the complaint, and this is consistent with the law, the plaintiff assumed the burden of showing that the enginemen discovered the peril of plaintiff's intestate in time to take preventive steps to avert the injury and death, and charge 38 pretermits this element, assumes that, if the fireman discovered his peril, it was in time to do something to avert the catastrophe, and was invasive of the jury's province.

If, as the fireman's testimony tends to show, intestate, by his own conduct, put himself in a position of peril, and this action on his part was so sudden that there was no reasonable possibility of averting the disaster, the statute imposed no duty on the enginemen to act. Beavers v. Southern Ry. Co.,212 Ala. 600, 103 So. 887; Savannah Western Railroad Co. v. Jarvis, 95 Ala. 149, 10 So. 323; Memphis C. R. Co. v. Davis (Ala. Sup.) 14 So. 643; Kansas City, Memphis Birmingham Railroad Co. v. Watson, 91 Ala. 483, 8 So. 793; East Tenn., Va. Ga. Railroad Co. v. Bayliss, 77 Ala. 429, 54 Am. Rep. 69.

Charge 38 is subject to the further criticism that it undertook to impose on the fireman the use of all means "promptly and in their order known to skillful firemen in his position to avert the injury," regardless of whether such means were within his power or at his command. (Italics supplied.)

It must be assumed that "skillful firemen" know of all the means and appliances for warning persons on or in dangerous proximity to the track, of stopping or checking the speed of a locomotive, such as blowing the whistle, ringing the bell, applying the brakes, and even reversing the engine; nevertheless, if the engineer is at his post and actively in charge of the locomotive and all the appliances at hand to prevent the locomotive coming in contact with a person or obstruction on or dangerously near the track, the fireman could not, without the grossest negligence, assume to perform the functions and duties of the engineer, notwithstanding such means were known to him as fireman.

The engineer in the instant case was called by and testified as a witness for the plaintiff, and his testimony shows that he was in charge of the operation of the locomotive, and was, as he expressed it, on the "qui vive;" that he had turned on the automatic appliance for ringing the bell, that he had just blown the crossing whistle, and had just released the lever; that the brake levers were immediately in front of him; that he was looking ahead and did not see intestate and knew nothing of his presence until the fireman informed him that intestate had been killed, and that he then applied the brakes and stopped the train. The duty imposed by the statute is imposed on "the engineer or other person having control of the running of a locomotive." Code 1923, § 9952.

In the circumstances disclosed by the evidence, the duty resting on the fireman was to act promptly to use the meanswithin his power and within the scope of the duties of his employment, if he discovered intestate in time to take such action, and that was to warn or notify the engineer of intestate's peril. Louisville Nashville R. Co. v. Loyd,186 Ala. 119, 65 So. 153.

The rehearing should be granted, the judgment of affirmance set aside, and the judgment of the circuit court reversed in its entirety, and the cause remanded for another trial.

I therefore respectfully dissent.