Gulf, M. N. R. Co. v. Havard , 217 Ala. 639 ( 1928 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This case went to the jury on counts 3 and 4 of the complaint, and there is no need to consider errors supposed to have affected the case as stated in counts 1 and 2.

In our original opinion it was stated that plaintiff, appellee, stepped on the covering of a hole which was in a public street or highway near the corporate limits of the city of Mobile, and also — as we understood — in defendant's right of way at or near the point where defendant's track crossed the highway. On rehearing it appears that the foregoing statement is not accurate. Perhaps we were misled by the maps of the locus in quo, which are to be found in the transcript of the record and in the briefs on either side. On closer examination we find the facts to be: The railroad track, running northwest and southeast, crosses the extension of Government street, shown in the maps as "Government Street Road," which runs east and west. Defendant railroad company had acquired its right of way southeast of the road, so to speak of Government street road, by condemnation, which, in terms, as the record discloses, extended to the south line of, but not across, the road. The right of way to the northwest was acquired by purchase and was bounded on the south side, or extremity, by the north line of the road. The hole was in the road about midway between defendant's track and the northeast boundary line of its right of way, if that right of way be taken and considered as laid across the width of the road. The complaint alleges nothing to the contrary. It (count 3), after describing the location of the hole, alleges that "defendant's servants or agents, acting within the line and scope of their employment by defendant, covered said hole in such a manner to apparently afford a safe place for pedestrians to walk thereon and so covered said hole in such a negligent manner that it was unsafe for a person to step thereon, and as a proximate consequence of such negligent act" the plaintiff stepped, etc., and was hurt. The corresponding allegation of count 4 is that —

"Defendant's servants or agents, acting within the line and scope of their employment by defendant, negligently placed a board or boards over said hole without fastening it or them securely in place, and so placing said board or boards as to afford an apparently safe passageway for pedestrians, and the plaintiff while walking along said roadway at said point" stepped, etc.

Defendant's demurrer, as presented in the brief, takes the point that the facts alleged are insufficient to raise a duty on the part of defendant to repair the hole, and, in consequence, the allegation that defendant's agent or servants were acting within the line and scope of their employment in so doing appears on the face of the complaint to be repugnant to the rest of the complaint. In short, the argument is the alleged hole was not on defendant's right of way, and since at the place in question defendant was under duty to maintain its roadbed only, the complaint discloses two defects in plaintiff's case one growing out of the other, both operating to the same conclusion, viz. Defendant, in the circumstances alleged, was under no duty; defendant's agents or servants were not acting within the line and scope of their employment.

It cannot be denied that railroad companies are required to keep the approaches to their tracks, as well as the tracks themselves, at public crossings, in good repair. Pratt Coal Iron Co. v. Davis, 79 Ala. 308; Southern Railway v. Morris,143 Ala. 628, 42 So. 17. Each crossing presents different conditions and problems, but the general rule is that the company must do whatever is reasonably necessary to be done for the safety and convenience of travelers using the crossing. 3 Elliott on Railroads (2d Ed.) § 1107. Proper approaches and embankments necessary to enable the traveler to reach and leave the crossing are a part of the crossing, and the company is under duty to construct and maintain them. Id.; Southern Railway v. Morris, supra.

We presume defendant's railroad was constructed under authority of law. The right to build across highways is to be implied, if not expressly granted. Inhabitants v. Port Reading, etc., R. R. Co., 49 N.J. Eq. 11, 23 A. 127. In the situation thus shown it was the duty of defendant railroad company to preserve the lateral support of the intersecting road as constructed and operated for public use. Haverstraw v. Eckerson, 192 N.Y. 54, 84 N.E. 578, 20 L.R.A. (N.S.) 287. This is nothing more than an adaptation to the particular environment of the general rule that railroads are required to keep the approaches to their tracks in safe repair. And this duty existed, whether or not defendant's right of way be held to include or cover so much of the road as lay within the outer lines of its right of way, if projected across the road, and it is not necessary for the purposes of this case to say whether the road within the limits of the outer lines of the right of way, if extended across the road, was a part of the right of way. In either event it was the duty of the defendant to give lateral support to the road, whether the need for such support was brought about by the fact that the road had been elevated above the adjoining right of way or the right of way had been lowered below the road by excavation.

In view of the principle of law stated above and our rule of pleading in such cases, which permits great generality of allegation, little short of mere conclusion, plaintiff would have been allowed to prove that her injury was caused by a hole in the road produced by defendant's dereliction in respect of its stated duty in the premises. It follows, therefore, that the complaint did not appear to be repugnant in itself, as the demurrer alleged, by reason that it alleged defendant's agents or servants in the matter of repairing the hole acted in the line and scope of their employment. In other words, the other facts alleged do not contradict the complaint, wherein it alleges that defendant's agents or servants were acting within the line and scope of their employment.

But, aside from what has been said, the complaint is framed with the purpose of charging that defendant constructed a trap or pitfall on its right of way, that plaintiff, walking along the public highway, in which also was the hole, had a right to be where she was, and that, whether or no it was the duty of defendant to repair the hole it was under duty to plaintiff, and the public generally, if it would undertake to repair, to make such repairs as would not leave the place with the merely deceptive appearance of safety. The judgment now is that the demurrer to counts 3 and 4 was properly overruled.

The demurrer to plea A was properly sustained. If the place was apparently safe, and the plea does not deny that it was, then, in the absence of plaintiff's knowledge of the fact that its safety was apparent only, and plaintiff is not charged with such knowledge, plaintiff had a right to walk there, and cannot be charged with contributory negligence for that she failed to walk at another available place in the highway.

What defendant's employee "felt" about its being his duty to "fix that hole," whether before or after plaintiff's hurt, was immaterial. But the allowance of the question which developed this fact cannot be allowed to work a reversal, even though found to be of prejudicial tendency, for the reason that the particular objection interposed, viz. that it called for the feeling of the witness after the accident, waived, for the purpose of this appeal, another objection which might have been efficaciously interposed, but was not. Clark v. State (Ala. Sup.) 115 So. 295.¹ As for the objection taken to this evidence, that we will consider in the next place.

Plaintiff was allowed to ask defendant's witness Whatley, who was defendant's section foreman:

"After this accident, didn't you take your road gang and go there and make repairs to that place — permanent repairs — that is, fix it so that it would be safe, or so that it was safe?"

Defendant's objection, made on grounds appropriately raising the question now to be considered, was overruled without error. This court has frequently ruled in cases of this general sort that it is not competent to show that defendant has, after the injury complained of, repaired or changed the machinery or premises, the defective condition of which is alleged to have caused the injury, as tending to show anterior negligence with respect thereto. So, in substance, the rule is stated in Bedgood v. Miller Mill Co., 202 Ala. 299, 301, 80 So. 364. Some of the cases sustaining the rule thus stated are Going v. Alabama Steel Co., 141 Ala. 537, 550, 37 So. 784; Alabama Consolidated Co. v. Heald, 154 Ala. 580, 595, 45 So. 686; M. C. St. L. v. Ragan, 167 Ala. 277, 280, 52 So. 522; Davidson v. Alabama Power Co., 203 Ala. 77, 78, 82 So. 91; A. G. S. v. Ensley Transfer, 211 Ala. 298, 300, 100 So. 342; Collins v. Mobile Ohio, 210 Ala. 234, 239, 97 So. 631. But circumstances alter rules and in Burnwell Coal Co. v. Setzer, 191 Ala. 398,409, 67 So. 604, it was held that evidence of this character may be competent for the purpose of showing that the place of the accident was under the control of the defendant, if that becomes an issue. N.C. St. L. v. Ragan, and Bedgood v. Miller Mill Co., supra, support the proposition of Burnwell Coal Co. v. Setzer. It early became apparent in this cause that the main ground of defense was that defendant was not responsible for the condition of the locus in quo. That is still the contention. Our judgment of the point here under discussion is that the ruling in the trial court should be sustained on both reason and authority.

Appellee introduced evidence tending to show that the hole in the road was caused by the sloughing off of the bank of the road adjacent to and above a ditch on defendant's right of way.

Appellant insists that, since there was no wall or abutment between the head of the ditch — where the sloughing took place — and the road, there could be no dereliction in the matter of lateral support; but we think that the duty of maintaining the bank of the roadbed as constructed and operated for public use was on defendant, and, whether so or not, if the defendant undertook to repair the hole in the road, it should have executed that undertaking so as not to create a trap or pitfall in the highway. Haverstraw v. Eckerson, supra.

The court, in the course of its oral charge to the jury, said:

"The court charges the jury that whatever is done by the employee in furtherance of his employment and in furtherance of its ends is admitted by the law to be an act done within the scope of employment."

This is substantially the language of 33 C. J. p. 1283, § 1472. This statement of law is criticized for the use of "furtherance" instead of "in virtue of his employment." An employee may, it is conceivable to aid his employer, do something without his authority, but it is doubted that such an act would be done in furtherance of his employment. Employment, in the connection in which the court used the word, means the content of the contract of employment. However, the criticism is too refined for use in the practical administration of justice by jury trials, and we find in the record no sufficient reason for the conclusion that the language of the charge wherein faulty, if faulty it was, may have prejudicially affected defendant's case. It is freely conceded that, if defendant's employee proceeded to repair the hole because of a purely humanitarian and gratuitous interest in the safety of the public (Connors-Weyman Co. v. Kilgore, 189 Ala. 643, 650,66 So. 609), and not because that was a part of the duty imposed upon him by his employment, defendant should not have been held liable; but we do not read the court's language as implying anything to the contrary, and as we have already indicated, defendant's duty to repair may very well have been inferred from the cause and location of the hole if from nothing else, and its liability in the premises may well have been based on a finding that the duty was negligently performed. Jones v. Kirkpatrick Sand Co., 208 Ala. 365, 368, 94 So. 595; 39 C. J. 1362, 1363.

Other assignments of error are based upon the propositions that in no event, under the evidence, should plaintiff have been allowed to recover, and that, in any event, defendant's motion for a new trial should have been granted. We cannot admit the force of either contention, and we trust our reasons for this conclusion have sufficiently appeared.

Judgment affirmed.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.

¹ Ante, p. 229.