Clements v. East. Tenn., Va. & Ga. Railroad

STONE, O. J. There was a plea of nul tiel corporation, a replication to it, and a demurrer to the plea and to the replication. The Circuit Court made some rulings on these pleadings, but it is unnecessary to consider them. The bill of exceptions informs us it contains substantially all the evidence, and not a word of testimony was offered on this issue, nor was there any ruling of the court given or asked upon it, other than that upon the demurrers. The case was tried precisely as if no question had been raised on the name of the corporation. This line of defense must have been abandoned, and we will not consider it. The injury complained of, it is contended, was inflicted at or near a public road crossing. The statute (Code of 1876, § 1699) has prescribed certain duties to be performed by officers in charge of trains, when approaching or passing such public road crossing. The whistle must be blown, or the bell sounded, one-fourtli of a mile before reaching such crossing, &c.; and if it be in the night-time, the train must have a head-light burning. It has been several times decided in this court, that if the injury is done at a public road crossing, or other place specifically mentioned in section 1699, then the railroad does not relieve itself of the imputation of negligence, unless it proves a compliance with the said statutory requirements. Each of these decisions, however, was pronounced in cases where loss of, or injury to property, was the cause of action. — Nashville & Decatur R. R. Co. v. Comans, 45 Ala. 437; M. & O. R. R. Co. v. Williams, 53 Ala. 595 ; S. & N. R. R. Co. v. Thompson, 62 Ala. 494; S. & N. R. R. Co. v. Williams, 65 Ala. 74; Ala. Gr. So. R. R. Co. v. McAlpine, 71 Ala. 545 ; E. T., Va. & Ga. R. R. Co. v. Bayliss, 74 Ala. 150. In cases of injury to property, at points on the railroad [537] other than those at which the whistle is required to be blown, or the bell sounded, the rule is different. It is enough, in such cases, even if there be a failure to conform to regulations, or if those in charge of the train are guilty of negligence, if it be shown that such injury did not result from the negligence of the road’s employees. In other words, unless the relation of cause and effect exist between the negligence and the injury, the road is not liable. — E. T., Va. & Ga. R. R. Co. v. Bayliss, 75 Ala. 466; Ala. Gr. So. R. R. Co. v. McAlpine, 75 Ala. 113 ; M. & C. R. R. Co. v. Bibb, 37 Ala. 599 ; Cook v. R. R. Co., 67 Ala. 533. The statute, however, in fixing the burden of proof, makes a distinction between injuries to property, and injuries to persons. Its language (Code, § 1700) is : “A railroad company is liable for all damages done to persons, stock, or other property, resulting from a failure to comply with the requirements of the preceding section, or any negligence on the part of the company or its agents; and when any stock is killed or injured, or other property damaged or destroyed, by the locomotive or cars of any railroad, the burden of proof, in any suit brought therefor, is on the railroad company, to show that the requirements of the preceding section [1699] were complied with at the time and place when and where the injury was done.” This statute, when declaring the liability of railroads, makes it the same for injuries to persons, as for injuries to property. It is for all damages done to either, resulting from a failure to comply with statutory requirements, or from other negligence. If the statute had stopped here, no one would have disputed the proposition, that to maintain a suit for damages done to either person or property, the damage or injury must be the resultant of negligence or want of care on the part of the railroad employees. There must have existed between them the relation of cause and effect. But the statute did not stop here. It proceeded to declare on whom the burden of proof rested, and, in doing so, dropped the subject of persons, and confined its operation to stock killed or injured, and to other property. When the suit is for a wrong to property, the burden is on the railroad to show a compliance with the requirements of section 1699. On this provision rests the ruling declared in M. & O. R. R. Co. v. Williams, 53 Ala. 595, and the cases which followed it. There is no such provision, when the suit is for an injury to the person. Why the distinction is taken, it is not for us to say. Sufficient that ita est soripta lex. We alluded to this difference in M. & M. Railway Co. v. Blakely, 59 Ala. 471. Possibly, the reason of the difference is the one intimated in that opinion. Be this as it may, we find the difference made [538] by the legislature itself, and by every sound rule of construction we feel bound to respect it. Expressum facit cessare taciturn. When suit is for an injury to the person, the rule, somewhat artificial in its reasoning, declared in the second clause of section 1700 of the Code, does not apply. We can not agree to the argument, implied in several of the charges asked, that if the railroad company was guilty of negligence, or omissions of duty, which aided in bringing about the injury, then contributory negligence on the part of the plaintiff, though proximate, is no defense to the action.- — M. & C. R. R. Co. v. Copeland, 61 Ala. 376; Cook v. R. R. Co., 67 Ala. 533. Affirmed.