Sloss-Sheffield Steel & Iron Co. v. Willingham

On Rehearing. Upon the submission here of this case, and after; hawing heard and considered the oral argument of counsel, and after having also read and attentively considered briefs and arguments filed by each of the respective parties, and after having given thoughtful, extended and careful consideration to all of the testimony set out in the record, this court did ascertain and determine, as a matter of fact, that there was a conflict between the testimony offered by the plaintiff, in the court below, and that offered by the defendant, upon the trial of this case, as to whether or not the plaintiff was guilty of contributory negligence as averred in defendant’s plea. We held that because of this conflict in the testimony the trial court did not err in refusing to give the general affirmative charge in favor of the defendant.' Upon this application for rehearing we are informed, by counsel for appellant, that the case at bar is in all respects identical with the case of Sloss-Sheffield Steel & Iron Co. v. Peinhardt, 195 So. 428, 429, recently decided by the Supreme Court, in -which case it is claimed the judgment was rendered and the opinion was put out by that court prior to the rendition of the judgment by this court and the promulgation of our opinion in the case at bar, of which judgment and opinion of our Supreme Court, it is claimed by appellant, notice was given this court before the announcement of our judgment and opinion in the case at bar. With respect to the identity of the two records, this court has examined both of them and we find they are not identical. The complaints are not the same; the given and refused charges are not the same; and the assignments of errors are not the same. Apparently the same witnesses were used by each of the parties in each case and apparently the same testimony was elicited from these witnesses in the case at bar as was elicited from them in the Peinhardt case, supra. So, in substance and effect, this court is requested to recede from its finding of a fact in the case at bar-because our Supreme Court, from the same testimony, found the fact to be contrary -to the finding of that fact by this court, and we are favored with the advice that this court is controlled by and should follow the judgment and opinion of our Supreme Court as to the fact, by setting aside, and holding for naught, our finding of' that fact, and ’this notwithstanding the well-recognized legal principle that negligence, vel non, is a question of law only when all reasonable men must draw the same conclusion from the facts testified to. In the Peinhardt case, supra, the Supreme Court in its opinion, after pointing out certain testimony of the witness, Willingham, the plaintiff, in the case at bar, declared: “Thus the driver [Willing-ham] knew the railroad crossings and knew also of the location of a street light -on the corner.” Later on, in the opinion of our Supreme Court, a portion of the testimony of the witness, Willingham, given in the trial was quoted, in haec verba,' from which it is established that said Willingham, among other things, testified as follows: “Those tracks are level with the pavement, you couldn’t see the tracks until you got right on it; they are down in the pavement. There is no sign out there indicating a railroad; there is no stop sign there, or other designation; there is no sign warning you there is a railroad track there. I did not .frequently travel on 25th Street; I was not familiar with that street, I hadn’t been over it but a mighty few times. I did not know those tracks were there at that point before the accident. * * * As I approached the place where the accident happened, I did not see any train approaching the crossing." (Italics supplied.) Willingham had good headlights. He could see up 25th Street in the illuminated part of the street made visible by his headlights. He was under the duty of looking out for the presence of pedestrians, vehicles, and obstacles in and upon the highway so as to avoid injuring them after he was aware of their presence. In the exercise of his duty his line of vision was straight ahead, and not off to his right or left of the highway; defendant’s unlighted train was approaching the crossing from the left. Willing- *582 ham. swore he did not see that train, nor did he see any light thereon, or hear any warning therefrom. To say that under these circumstances the trial court should have determined that Willingham did see the train and was under the duty to stop, look and listen at a crossing which he did not know existed at that point, and which he did not see, is to distort the doctrine of res ipsa loquitur, and to give to it an unwarranted and unjustifiable in-, terpretation. This court thought it necessary, under appellant’s first assignment of error, to consider all of the testimony of the witness Willingham, in the case at bar, along with the testimony of the witnesses, Neil Tolliver, A. C. Hall and Robert Watts, all of whom testified as witnesses for the plaintiff, on the one side, and the testimony of Lester Alexander, S. B. Key, and D. H. McKinney, witnesses for the defendant; together with the photographs of the scene of the collision,, introduced in evidence by the defendant, on the other side. Upon our consideration of all the testimony this court found the fact to be, and so declared, that there was a sharp conflict between the testimony of the plaintiff and that of the defendant as to whether or not the plaintiff was guilty of contributory negligence in attempting to cross the defendant’s railroad track, at the time and place of the collision, without first stopping, looking and listening. This court will be governed by and will unhesitatingly follow the judgment of óur Supreme Court upon a question of law; this the statute requires. And, in finding that there was a conflict between the testimony of the plaintiff, and that of the defendant upon the question of contributory negligence, vel non, upon the part of the plaintiff in the case at bar, this court has been guided and governed in its determination and conclusions by applicable decisions of the Supreme Court declaring certain rules, among which are: (1) In determining the propriety of giving the general affirmative charge when requested by the defendant the evidence offered by plaintiff must be accepted as true. Supporting cases are McMillan v. Aiken, 205 Ala. 35, 88 So. 135; McGowin Lumber & Export Co. v. McDonald Lumber Co., 186 Ala. 580, 64 So. 787; (2) In determining whether or not oral testimony is contradicted and nullified by established, or undisputed, physical facts, it is the jury which makes the presumption in giving proper effect to the evidence, the jury which says res ipsa loquitur -(the thing speaks for itself). Among the cases declaring or approving the rule are the following: Chamberlain v. Southern R. Co., 159 Ala. 171, 48 So. 703; Wright v. J. A. Richards & Co., 214 Ala. 678, 108 So. 610; Cooper v. Agee, 222 Ala. 334, 132 So. 173, 175. This court having ascertained and declared that there was a conflict between the testimony offered by plaintiff and that offered by the defendant upon the trial below as to whether or not the plaintiff was guilty of contributory negligence in attempting to cross the defendant’s railroad track, at the time, place and under the circumstances of the collision, without first stopping, looking and listening for an approaching train, and not being shown or convinced that such finding was incorrect, and it not being shown or suggested that this court has erred in its judgment with respect to any question Of law, arising upon the appeal, it is the opinion and judgment of this court that appellant’s application for a rehearing should be, and the same is hereby, overruled. See Postal Telegraph and Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91; Ex parte Hale, 225 Ala. 267, 142 So. 589; Vest v. Night Commander Lighting Co., 224 Ala. 213, 139 So. 297; Byars v. Town of Boaz, et al., 229 Ala. 22, 155 So. 383; Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829; Id., 26 Ala.App. 402, 161 So. 826. Opinion extended. Application for rehearing overruled. PER CURIAM. Reversed and remanded under provisions of Code, § 7318 (Sloss-Sheffield Steel and Iron Co. v. Willingham, Ala.Sup., 199 So. 28.)