Nashville, C. & St. L. Ry. v. Cox

SAMFORD, J. The complaint, as originally filed, was jointly against the defendant corporation and two of its employees in charge of defendant’s locomotive at the time of the injury. To the single count, defendant demurred assigning six grounds. Five of these grounds were eliminated by an amendment to the complaint striking out the two employees as parties defendant, leaving as a sole ground of demurrer, that the place of the injury was not sufficiently described. As to this, the complaint alleges that the injury occurred on one of the streets of Guntersville, and within the corporate limits of said town, while plaintiff was crossing defendant’s track. The complaint we think is sufficiently clear in its allegation that the place of injury was at a street crossing in the town of Guntersville. The cases of Jolley v. So. R. Co., 197 Ala. 60, 72 South. 382, and A. G. S. R. Co. v. Fulton, 144 Ala. 332, 39 South. 282, are not in point. At the conclusion of the evidence plaintiff amended his complaint by striking out the employees named in the complaint, leaving as sole defendant this defendant. Motion was then and there made for a discontinuance as to this’ defendant, which motion was overruled. In this the trial court did not commit error. The right of amendment is provided by statute. Acts 1915, p. 605; Crawford v. Mills, 202 Ala. 62, 79 South. 456; Patterson Lbr. Co. v. Patrick, 202 Ala. 363, 80 South. 445; Wright v. McCord, 205 Ala. 122, 88 South. 150. Charge B, given at the request of plaintiff, was a fair statement of the rule as to burden of proof, in conformity to sections 5473 and 5476 of the Code of 1907, it having been shown without dispute that the injury occurred while defendant’s locomotive was moving within a village, town, or city. The headnote No. 5 in W. Ry. of Ala. v. McPherson, 146 Ala. 427, 1 is misleading and is not borne out by the opinion. The opinion in L. & N. R. Co. v. Christian, etc., Co., 150 Ala. 390, 3d headnote, 43 South. 723, is based upon an entirely different charge. It is insisted by appellant that the trial court should have given the general affirmative charge as requested by defendant, because the plaintiff failed to stop, look, and listen at a place where he could have seen the approach of defendant’s locomotive before going on the defendant’s track. The doctrine of “stop, look, and listen” is firmly established in this state, and where a person fails to observe such doctrine and is injured while crossing a railroad track, he is guilty of contributory negligence, which is a complete answer to an action for simple negligence. But, as to where he shall stop, depends upon the facts of each case and the conditions surrounding the place. Following the decision in Ga. P. Ry. Co. v. Lee, 92 Ala. 262, 9 South. 230, we are of the opinion that the trial court properly submitted the question in this case to the jury. The vice of charge No. 4 as requested by defendant lies in the fact that the crossing at which the injury occurred was admittedly in a village, town, or city and was a recognized crossing by defendant. Charge No. 5 is abstract. While passing through a village, town, or city it is the duty of the person in charge of a locomotive to blow the whistle or ring the bell at short intervals, and therefore charge No. 6 was properly refused. Charge 8 was clearly an argument. The whole question involved in this charge was clearly and fully explained to the jury in the court’s oral charge. The questions involved were fairly presented to the jury, the evidence made it a jury ease, and tne court did not err in refusing to set aside the verdict. Let the judgment be affirmed. Affirmed.