South & North Alabama Railroad v. Thompson

BRICKELL, C. J. 1. The statutes make certain positive regulations a railroad company, its engineer or other person having the control of the running of its locomotives, must observe before reaching any public road crossing, or any depot or stopping place on such road, and until such road crossing is passed, and until he reaches such depot or stopping place. There are other places specified in the statutes at which certain regulations must be observed. — Code of 1876, § 1699. The engineer or other person having control of the running of a locomotive, who does not observe these regulations, is subject to indictment and punishment for a misdemeanor. — Code of 1876, § 4256. The railroad company is declared liable for all damages done to persons» stock, or other property, caused by a failure to observe these regulations, or by any negligence on the part of the company or its agents. In any suit for injuries to property “the burden of proof is on the railroad company,” to show that these regulations were observed, if the injury occurred at any one of the places mentioned in the statute. — Code of 1876, § 1700; M. & O. R. R. Co. v. Williams, 53 Ala. 595. 2. The injuries to property, which are the subject of the present suit, occurred at the intersection of the road of the appellant with a public road in Jefferson county. The Circuit Court instructed the jury, that an observance by the appellant or its servants or agents of the statutory regulations, did not excuse from liability, if in other respects there was negligence. This was the substance, though not the language of the instruction, and we do not think it objectionable. Such is the fair construction of the words of the statute, which renders the company liable if these statutory regulations are not observed, but declares in addition, a liability for any negligence on the part of such company or its agents. If these words were not found in the statute, it would not be a fair construction that would absolve the company from responsibility, because it observed the statutory regulations, and -yet neglected other precautions which ordinary prudence would suggest as necessary to avoid casualties. 3. The first instruction requested, proceeds on the ground, that evidence that there was not on the train of cars causing [500] the injury, a sufficient force to manage and control it, was inadmissible under the averments of the complaint. The complaint contains two counts, neither of which aver any special acts or omissions as constituting negligence. Each count contains the general averment that the injury complained of, “was the result of the negligence or want of skill of defendant’s employes in the management or running of said train, locomotive, or cars.” Under our statutes, “all pleadings must be as brief as is consistent with perspicuity, and the presentation of the facts or matter to be put in issue in an intelligible form.” “Any pleading which conforms substantially to the forms attached” to the Code, “is sufficient.” The forms consist of general allegations of legal conclusions, rather than a statement of the particular facts which will support them. Generally, negligence is a mixed question of law and fact, and it would not comport with our system of pleading, to require that a party complaining of it, should aver each particular fact or circumstance which contributes to prove it. No such particularity is found in any of the forms of complaint attached, in kindred actions, and it would be a departure from the statute to require it in one particular class of actions. 4. It is the duty of travelers approaching the intersection of a railroad with a public highway to look out and listen for trains or engines; and a neglect of the duty contributing to an injury, will avoid all right of recovery for it. — N. P. R. R. Co. v. Hirleman, 49 Penn. 60. The second charge requested asserts a much broader and larger legal proposition. It asserts that if, by inquiry, travelers could ascertain when trains would pass such crossings, and if such inquiries had been made, an injury would have been avoided, the failure to make them is contributory negligence. No authority has been cited in support of this proposition. It is not the duty of travelers, or of any person in the proper use of a public highway, to make any such inquiry. They have a right to rely on a compliance with the statutory regulations, and on the appearances of the railroad track, at the time they are approaching or crossing. If they are then diligent, watching and listening for trains, the duty they owe to the railroad company is performed. 5. The third charge requested, was properly refused, because it asserted that the appellant had the right to run its train “at any speed it pleased, so that it did not endanger the freight or persons on board of said train.” 'When a train is approaching the intersection of a public highway, there are other duties which must be observed, than such as relate merely to the safety of the freight and persons on [501] board the train. The public at large have rights to the use of the highway equal in degree to any to which the railroad company is entitled. It is a duty to the public having the right to the use of the highway, that not only the warnings of the approach of the train, the statutes prescribe, should be given, but that the speed of the train should be slackened, so that it would be more manageable, and collisions with persons or property crossing the track may be more easily avoided. — Whart. Neg. § 804; M. & C. R. R. Co. v. Lyon, MSS. "We find no error in the record, and the judgment must be affirmed.