Memphis & Charleston Railroad v. Copeland

STONE, J. The doctrine, that one who has contributed proximately to the injury, can not recover damages therefor,. [379] is too firmly rooted in our jurisprudence to be open to further controversy. This principle does not rest on the idea that one wrong sets off the other, or that one justifies the other. It is founded on the broader ground, that when the negligence of the plaintiff has contributed proximately to the injury, the damage is considered of his own producing, and it is difficult, if not impossible to determine the quantum of injury which resulted from the defendant’s tortious, or negligent conduct. It is not that, in such case, the defendant has done no wrong. ITis dereliction of duty may be so patent, as to render it morally certain that, without such dereliction, the injury would not have resulted. This is not the test; for it is equally true, in cases of proximate con-tributary negligence, that without the plaintiff’s fault, the injury would not have resulted. To allow such plaintiff to recover, would be to permit a recovery for the proximate consequences of the plaintiff’s own negligence. — Tanner v. Louisville and Nashville Railroad Co. 60 Ala. 621. And courts of common law can not institute a comparison of the degrees of negligence between plaintiff and defendant. South and North Ala. R.R. v. Sullivan, 59 Ala. 272. We have so fully discussed these questions in the cases cited, that we consider any further discussion unnecessary. — See, also, Savannah and Memphis R. R. Co. v. Shearer, 58 Ala. 672; and M. & M. Railway Co. v. Blakely, 59 Ala. 471. The plaintiff’s intestate was crushed and killed by a freight train of the defendant. The witnesses are not agreed on the question, whether the whistle was sounded, or the bell rung, before the defendant’s train was moved. The charge of the court submitted that question to the jury, and, to find the verdict they did, if they regarded the charge of the court, it was necessary for them to find that neither of these signals was given. We must then deal with the ease as if neither was given. Failing to sound the whistle, or ring the bell, was a breach of duty enjoined by statute, and fixes the charge of negligence on the railroad corporation; and any one injured thereby may recover damages for the injury, unless by his own negligence or fault he has disabled himself from making complaint. The undisputed facts are, that plaintiff’s intestate attempted to cross defendant’s railroad track, by passing under the coupling of two box-cars, which were coupled together, and constituted part of a train, then standing temporarily on the side-track; placed there, with locomotive and steam up, to allow a passenger train to pass it.. While in the act of passing under the coupling, the train. [380] was moved, and he was knocked down, run over and killed. The attempt thus to pass between the cars of a train, which he must have known was liable to be moved, can not be ■classed as less than negligence. It borders on recklessness. It certainly contributed — proximately contributed — to the very sad disaster which followed. If the usual signal had been sounded, probably intestate could have extricated himself"in time to save his life. If he had not attempted to •cross over between the cars, he would have been in no peril, •and would have suffered no injury. Both were in fault. The recent case of Stillron v. Han. & St. Jo. R. R., published in Central Law Journal of August 9th, 1878, is not distinguishable from this in principle. In that case, two freight trains were on the side-track, their rear cars being in about twenty inches of each other. They blocked up the main street of the village, which contained about one hundred and fifty inhabitants. The father of plaintiff had passed through this opening, and returning a few moments afterwards in company with his little daughter, as they “approached within five or six feet of the opening, in answer to an inquiry from the daughter as to how he got through, the father pointed out the opening, and in his immediate view the daughter proceeded to follow his directions in passing through the opening, and was injured by the cars going together; the cars being moved by an engine that was about starting one of the trains from the side-track. This opening Avas a few feet east of the east line of a street-crossing. One of the trains entirely blocked up the street, and it was not shown that the men in charge of the train knew that any one was attempting to pass through the opening. The suit was by the daughter to recover for the injuries she had sustained. It was held that the accident occured at a point where the train-men had a right to presume no one would attempt to cross; and, that where persons attempt to cross a railway at an accidental opening between cars, not in a highAvay, nor so placed as to invite the belief that it was left open for persons to pass through, they do so at their own peril. That the obligations, rights, and duties of railroad •companies, and travellers crossing them, are mutual and reciprocal, and no greater degree of care is required of one than the other. The judge, in delivering the opinion of the court, said: “The injury which this suit sought to redress, to a bright little girl of eight or nine years of age, remarkably sprightly and attractive, the pet of her father and of the •entire village where they lived, is calculated to excite the [381] sympathy of jurors and judges. But in the administration of law, considerations of this sort must be discarded, and the case must be investigated and determined upon established legal principles, applicable alike to all.” One principle of the case last cited is not in harmony with our decision in Government Street Railroad v. Hanlon, 53 Ala. 70. We allude to the ruling by which the infant was made to account for the negligence of its father. With that exception, we fully approve what is there decided, and hold that the principles are applicable to the present case. That portion of the general charge which was excepted to-is not in harmony with these views, and should not have been given. The fourth and tenth written charges asked should have been given. Beversed and remanded.