Payne v. Roy

In proving the frequency of travel along a highway over a railroad crossing, for the purpose of establishing wantonness on the part of trainmen, the frequency of the travel should, of course, correspond with the time of the injury, as proof of travel at one hour of the day would not necessarily show a populous crossing some other hour, or proof of a populous crossing throughout the day would not establish such a crossing at night. But we do not think that the trial court erred in permitting the witness Nabors, to testify:

"At that time of morning there are a good many that cross there going to work."

True, this evidence was not definite as to the number, but what the witness meant by "a good many" could have been ascertained upon cross-examination, and this evidence was relevant and competent, and tended to corroborate the plaintiff's other evidence, tending to show that it was crossed with frequency about that hour of the day. Nor did the trial court commit reversible error in permitting the witness Scott to testify that there was a good deal of passing at 7:30. This evidence would, of course, have been of greater probative force had it related to the exact hour of the injury, but it was admissible, in connection with the other evidence, to show the nature and character of the crossing throughout the day, and there was evidence that the accident occurred in the daytime, and after travel commenced. These comments are also applicable to the objection to the proof that street cars crossed at this point. Moreover, we do not find that the plaintiff's evidence as to the frequency of travel at this hour was controverted by the defendant's evidence. On the other hand, it was, in a sense, corroborated by the fact that the defendant regarded it as such a crossing as to require a flagman there at the time of the injury.

The witness Jim Davis did not have to be an expert to testify as to the speed of the train. A. G. S. R. R. v. Hall, 105 Ala. 599,17 So. 176. It is true, he admitted on cross-examination that he had never worked on trains, and had no opportunity to observe the speed of same, and to form an idea as to how fast they were running. But he subsequently stated that he worked on a section several months, that trains passed all the time he was on the section, and that he had seen trains run off and on all of his life. The fact that he was not an expert, or was not as close an observer as to the running of trains as others, went to the weight and sufficiency of his evidence as to the speed of the train, but did not render the same incompetent or improper.

The plaintiff substantially complied with sections 1259 and 3989 of the Code of 1907, and the amendment of section 1258 by the Acts of 1911, p. 632, as to showing the adoption and existence of the city ordinance. It is argued that, while the proof shows that it was in an ordinance book in use in August, 1919, and was adopted prior to the injury, it may have been suspended or repealed prior to the accident and that the proof fails to show that said ordinance was actually in force at the time of the injury. It is sufficient to say that the proof and certificate accompanying the introduction of the ordinance was not only prima facie evidence of the due adoption of same, but of the "continued existence" thereof. Section 3989 of the Code. The facts in reference to the ordinance in question are quite different from those dealt with in the cases of Adler v. Martin, 179 Ala. 97, 59 So. 597, and Excelsior Laundry v. Lomax, 166 Ala. 612, 52 So. 347. There, there was nothing to show the date of the adoption of the ordinance, and, from aught that appeared, it may have been adopted after the accident in question. Here the adoption of the ordinance was proved prior to the accident, and prima facie its existence continued.

The plaintiff having shown by the defendant's witness Ed. Ward that the defendant paid him $4 for a day's attendance upon a former term or day as a witness, and which said sum we judicially know was in excess of the legal per diem, the defendant should have been permitted to show by said witness that the amount so paid him merely reimbursed him for what he would have earned on said day under his regular employment. The evidence brought out by the plaintiff as to this payment unexplained, not only affected the credibility of the witness (Sou. R. R. v. Morris, 143 Ala. 628, 42 So. 17) but reflected upon the defendant, and the witness should have been permitted to show facts explanatory of the matter, and which tended to qualify or neutralize the damaging effect of this evidence. (Campbell v. State, 23 Ala. 76; Johnson v. State,102 Ala. 20, 16 So. 99; McAlpine v. State. 117 Ala. 100,23 So. 130). Of course, trial courts are given considerable discretion as to the cross-examination of witnesses, but this discretion does not go to the extent of authorizing a denial to a party the right to explain or qualify discrediting facts brought out by the opposite side. Tate v. State, 86 Ala. 33,5 So. 575; Wilson v. State, 195 Ala. 679, 71 So. 115; Wray v. State, 154 Ala. 42, 45 So. 697, 15 L.R.A. (N.S.) 493, 129 Am. St. Rep. 18, 16 Ann. Cas. 362.

There was evidence tending to establish the charge of simple negligence, both as to running the train in violation of the city ordinance, as well as failing to observe the statutory requirements as to signals in approaching the crossing and station. True, the defendant's evidence showed that the bell was rung and the whistle blown, but the plaintiff's witnesses testified as to not hearing them, and, while it was negative evidence as against positive, it made it a question for the jury. Indeed, the defendant's contention for the general charge as to the simple negligence count is based upon the idea that the plaintiff was guilty of proximate contributory negligence.

We may concede that the plaintiff was guilty of the most flagrant negligence in failing to stop and look and listen after reaching a point where he could have seen or heard an approaching train; yet it was a question for the jury as to whether or not the plaintiff's conduct, in this respect, under the circumstances disclosed by the evidence, was the proximate cause of the injury. Hines v. Paden, 204 Ala. 592, 87 So. 88. Counsel attempt to differentiate this case from the case at bar upon the idea that in said case the train was further off, and the plaintiff had ample time to have crossed before the train reached the crossing but for the fact that his car stalled, or "went dead," on the track. As we understand, the principle underlying said case is that, while the plaintiff was guilty of contributory negligence, it was a question for the jury as to whether or not said negligence was the proximate cause of the injury, as they could infer from the evidence that plaintiff would have cleared the track in safety but for the intervention of another factor — that is, the accidental and unavoidable stopping of the car upon the track. Therefore, applying this principle to the case at bar, it was a question for the determination of the jury as to whether or not the plaintiff's negligence was the proximate cause of the injury to his car, or whether or not it was due to the fact that the car "went dead" on the track, and could not be moved before it was struck by the train. The occupants of the car had time to get out and get off the track between the time it "went dead" and when struck by the train, and the jury could have inferred that, but for the intervention of this unavoidable accident, the car would have cleared the track before the train reached the crossing. Moreover, the defendant's witness Granger testified:

"I saw the automobile coming and the automobile tried to go over, and they would have gone over — would have done it — but the engine choked and stopped dead right on the crossing."

Moreover, there was evidence as to subsequent negligence, recoverable under the first count, notwithstanding the trial court erroneously eliminated the subsequent negligence count No. 2. A. G. S. R. R. v. McWhorter, 156 Ala. 269, 47 So. 84; Foshee's Case, 125 Ala. 199, 27 So. 1006.

We cannot put the trial court in error for refusing the general charge, requested by the defendant, as to the wanton counts. There were two theories upon which this question was properly submitted to the jury under the evidence: In the first place it was a question for the Jury as to whether or not the engineer made every reasonable effort to stop the train after becoming conscious of the danger. He testified that he did, and, if his testimony stood alone as to this fact, he was not guilty of wantonness; but he admitted that he was looking ahead, and there was evidence that the train could have been stopped, at the rate of speed it was going, according to some of the evidence, between the time the car stopped upon the track and when it was struck by the train, and, as he was looking ahead, the jury could have inferred that he saw the car when it reached the track and when it stopped. Second, there was also proof that the train approached a populous crossing without a warning signal or signals, at a high rate of speed, and from which the jury could have inferred wantonness. A. G. S. R. R. v. Bell, 200 Ala. 563, 76 So. 920. True, the evidence discloses that the defendant had a flagman at the crossing, and the engineer no doubt had the right to rely, to a great extent, on signals from said flagman, and, if they were not properly given, the flagman, and not the engineer, would be at fault; but we do not think that the existence of a flagman, or the signals he may have given, did or could relieve the engineer of the duty to make every effort to stop the train after the discovery of peril, or from not having his train under such control that he could conform to the signals when given. In other words, the existence of a flagman did not authorize the engineer to approach such a crossing at the rate of speed that some of the evidence shows the train was going. The cases cited and relied upon by appellant's counsel are not in conflict with the present holding. Rothrock v. A. G. S. R. R., 201 Ala. 308, 78 So. 84, Ga. Pac. R. R. v. Lee, 92 Ala. 262, 9 So. 230, and H. A. B. R. R. v. Maddox, 100 Ala. 618, 13 So. 615, did not deal with a populous crossing. In H. A. B. R. R. v. Sampson,91 Ala. 560, 8 So. 778, wantonness was not involved, and the case of A. G. S. R. R. v. Linn, 103 Ala. 134, 15 So. 508, dealt with a private crossing used only at intervals.

Defendant's refused charge D, the basis of the thirty-sixth assignment of error, was refused by the trial court without error. It pretermits the engineer's duty to resort to or use all preventive means to avoid the collision after discovering the plaintiff's car on the track, and which, as above pointed out, was a question for the jury. Moreover, it authorizes the acquittal of the engineer of wantonness, under the facts hypothesized, regardless of the rate of speed with which he approached the crossing. He could have been acting upon the signals of the flagman, and yet gone at such a rate of speed as to have rendered his conduct reckless and dangerous at this particular place. At least, it was in the province of the jury to so infer. For the foregoing reasons, if not others, the trial court did not err in refusing the defendant's requested charges 22 and F.

Charges G and H, requested by the defendant, are peremptory instructions that the defendant's servants were not guilty of either wantonness or simple negligence, and invaded the province of the jury. Likewise charges B and C invaded the province of the jury, as it was for them to determine whether or not, under one phase of the evidence, as to the rate of speed the train was going the engineer should have used the emergency brakes. For the same reason there was no error in refusing defendant's requested charge 25.

Defendant's requested charge 1, the general charge as to the entire complaint, was, of course, properly refused.

For the error above pointed out, the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.