Dolcito Quarry Co. v. Cruse-Crawford Mfg. Co.

SAMEORD, J. The trial in this case was by the court, sitting without a jury. A special finding on the facts was demanded and complied with by the court. In a case such as here presented the only office of a bill of exceptions is to reserve and present for review rulings of the court and the admission and exclusion of evidence such as by its erroneous admission’ or exclusion might have influenced the mind of the court in making a special finding and rendering a judgment it might not otherwise have rendered, thereby raising a presumption of injury to the party excepting. First Nat. Bank, etc., v. Chaffin, 118 Ala. 246, 24 South. 80; Chandler & Jones v. Crossland, 126 Ala. 176, 28 South. 420. It is provided by section 5361 of the Code of 1907, that “the finding of the court on the facts shall be subject to review without an exception thereto” — that is, to the extent of ascertaining whether the finding of the facts by the trial court sustains the judgment rendered. Kitchen & Bro. v. Robinson Bros., 138 Ala. 419, 35 South. 461; Chandler v. Crossland, 126 Ala, 176, 28 South. 420; American Ex. Co. v. Barnes, 18 Ala. App. 295, 91 South. 912; Am. C. I. P. Co. v. Birmingham Tailoring Co., 16 Ala. App. 583, 80 South. 157. If the special finding of the facts is correct and this court is without authority to review this question, ppon the evidence extrinsic of those findings (Kitchen & Bro. v. Robinson Bros., supra), the judgment rendered by the court as to both defendants is sustained. The general rule is that where a railroad company permits another the use of its tracks, it is liable for damage's caused by the negligence of the person or company so using and enjoying the permissive use. 22 R. C. L. p. 1096; Ga. P. Ry. Co. v. Underwood, 90 Ala. 49, 8 South. 116, 24 Am. St. Rep. 756; Ricketts v. Birmingham St. Ry. Co., 85 Ala. 600, 5 South. 353; vol. 1, Elliott on Railroads, p. 541. The cabe of Cleveland, O., C. & I. Ry. Co. v. Wynant, 114 Ind. 525, 17 N. E. 118, 5 Am. St. Rep. 644, cited by appellants, has no application in this case. The foregoing disposes of assignments 2, 3, 5, 6, 7, 8, 9, and 15. This leaves for consideration only the fourth assignment, all others having been waived by failure to insist upon them in brief. This question turns upon (1) whether there is any evidence to support the. legal inference that the use of the Louisville & Nashville car and track by the quarry company at the time of the accident was by agreement or permission of the defendant the Louisville & Nashville Railroad Company; or (2) Was there any evidence tending to prove negligence on the part of Hamlet, the person who was operating the car? As to the first question: There was evidence that this spur track was connected with the main line of the Louisville & Nashville Railroad Company; that its engines operated over it in pushing cars up to the quarry; that the cars so loaded were “let down” that is, permitted to run down grade by gravity, and turned over to the Louisville & Nashville Railroad for transportation; that the “letting down” was done by the employees of the defendant quarry company and the “pushing up” of the empties was done by engines bearing the initial and numbers of the Louisville & Nashville Railroad Company; that this was a continuing practice over this spur and was done openly. From these facts it would not require a very astute mind to arrive at the conclusion reached by the court in his findings. As to the second question: The .evidence to sustain the court’s finding is even more potent. There was evidence tending to prove a compliance by the defendants with the requirements of section 5475 of the Code of 1907, and injury to plaintiffs’ property having occurred at said crossing caused by *646 .one of defendant’s cars, under section 5476, .Code 1907, the burden was cast upon defendant to acquit itself of negligence. There was no evidence that the car was properly equipped with the latest appliances for stopping the car, there was evidence tending to show that defendant’s employee saw the peril of the truck and observed the fact that the driver of the truck did not realize the peril, and that after this he might have stopped the car and prevented the accident, if he had even used promptly the appliances at hand. We find no error in the record, and the judgment is affirmed. Affirmed.