Frazer v. South & North Ala. R. R.

CLOPTON, J. — The charges requested by the plaintiff, base his right to a recovery, notwithstanding his intestate was walking on the track of the railroad at the time he was injured, on the mere hypothesis that he was not aware of the approach of the train until it was too late for him to leave the track, and that the accident would have been avoided if the persons in charge of the train had exercised ordinary care in giving the reasonable and usual signals of — 195 — its approach after they discovered deceased on the track, or ought to have discovered him, if they had kept the proper lookout. The duty to give the signals is not restricted to the time when the peril of the deceased was discovered, or ought to have been discovered; but the charges assert that the duty arises when the persons in charge of the train, by a proper lookout, ought to have discovered the deceased on the track, though he may not have been in immediate peril, and that the omissiorfto discover and give the signals, under the circumstances disclosed by the evidence, is negligence, per se, sufficient to charge the defendant with liability for the injury. In order to sustain the charges it is necessary to maintain that the omission to keep a proper lookout and to discover was, not only negligence, but negligence of which the plaintiffs intestate would have a right to complain, if death had not ensued. It being an undisputed fact that the plaintiff’s intestate was walking on the track of the defendant’s railroad without right, for his own convenience, the record involves the consideration of the relative and respective rights, duties, and liabilities of the defendant operating trains, and of a trespasser on the track. At the place where the deceased was killed, the defendant was entitled to the free, unobstructed, and exclusive use of the road-bed for its appropriate purposes. Persons can not, as matter of right, convert the general track to the uses of ordinary travel or passage. Though the engineer may have actually discovered the deceased when the train arrived at the point of an open view of three hundred yards or more, he would have been authorized to presume that, prompted by the instincts of self-preservation, the deceased would leave the track and place himself beyond the reach of danger in time to escape injury; and would not have been bound to stop or check the train, unless and until the circumstances made apparent that deceased was unaware of its approach, or was unable to extricate himself from the perilous position.- — -M. & M. R. R. Co. v. Blakely, 59 Ala. 471. The duty of lookout is commensurate with the probable occurrence of obstructions and other dangers, and arises as to human beings, not being passengers, when- the train is approaching a public crossing, or passing through the streets of a city, town, or village. The duty also exists as to live stock, which, by their habits and experience, furnish reason of apprehension of obstruction, the owner not being regarded as a trespasser. — A. G. S. R. R. Co. v. Jones, 71 Ala. 487. But the company may act on the presumption that an intelligent being, of discreet years, will not assume the risk of trespassing on the right of an — 196 — unobstructed track; or if he does, that, he will use proper and appropriate means to ascertain and avoid any threatening danger. While it is the general duty of a railroad company to keep a proper and vigilant lookout for obstructions and other dangers, including, it may be, trespassers, it is not an absolute and particular duty to an intruder upon the track, so far as to constitute the omission to discover him and to give the cautionary signals’ ne&Jigence per se, as to such intruder. — McAllister v. B. & N. W. Ry. Co., 19 Am. & Eng. R. R. Cas. 108; L. & N. R. R. Co. v. Greene, Ib. 95; T. H. & I R. R. Co. v. Graham, 12 Am. & Eng. R. R. Cas. 77. We do not wish to be understood, from what we have said, as holding, that no duty devolves on those in charge of a moving train, when they see a person walking on the track. In such case a due regard for human life, and due precaution against unnecessary injury, require the usual signals of warning to be given. The rules, we have stated, are intended to apply, and apply only, when the person is not discovered. No neglect of duty on the part of a railroad company in moving trains will excuse a person who steps or walks on the track, from using his senses of sight and hearing, if available. What care would have been required of those in charge of the train, if they were cognizant of the partial deafness of the deceased, it is unnecessary to decide, as it is not shown that it was known to them. In the absence of proof showing that the employees were informed of his deafness, he must be regarded, so far as the duty of the defendant is concerned, as in the full possession of his faculty of hearing. — L. & N. R. R. Co. v. Cooper, 6 Am. & Eng. R. R. Cas. 5. In the direction from which the train was approaching, the track was straight, and the view clear, for a distance of from nine hundred to a thousand feet from the place where the deceased was struck. His eye-sight was good. There was a foot-path or private way on either side of the railroad, by which a jDerson going to the mill to which he was then going, could easily cross the track. It was the duty of the deceased to have extricated himself from the perilous position, if feasible, by the exercise of ordinary care. If the use of his faculty of sight would have given him sufficient warning to have enabled him to avoid the danger, he can not complain of any antecedent negligence of the defendant in failing to discover him, or in failing to give the usual signals. The defect of the charges, requested by the plaintiff, consists in their tendency and legal effect to withdraw from the consideration of the jury the defense of contributory negligence, as to which there could have — 197 — been no serious controversy on tbe evidence, and to rest tbe legal proposition asserted on tbe doctrine of comparative negligence, which has been discarded by our decisions. A material qualification of the ■ doctrine of contributory negligence has been established, founded on the universal duty which each member of the community owes to every other member. The duty arises in cases like the present, when those in charge of the moving train become aware, or are in a condition, when they ought to become aware, of the peril of the person, though he may be a trespasser on the track. The nature and extent of the qualification — the degree of care, and' the character of the acts or omissions, requisite in such cases, to acquit the defendant of legal responsibility for the injury, constitute the main contention between the parties. The rule as announced by some of the authorities, is expressed in terms, that the defense of contributory negligence is overcome, if the defendant, by the exercise of reasonable care and prudence, could have averted the injury at the time it was committed; and by others, that the misconduct of the defendant, which produces the injury, must be wanton, or reckless, or intentional. The appellant insists that the rule first stated has been approved by the decisions of this court. This question has been considered in several cases, and though some of the later decisions may seem to be in conflict, they are reconcilable on reason and principle. The statement of the general principle, as made in Government Street R. R. Co. v. Hanlon, 53 Ala. 70, was modified in Tanner v. L. & N. R. R. Co., 60 Ala. 621, as follows: “The word and between the words wanton and intentional should be or. Either wanton, reckless, or intentional injury done overcomes the defense of contributory negligence.” In the latter case, the deceased was riding on the track in a cut, when the train approached. He endeavored to escape the danger at a crossing near or at the mouth of the cut, when his horse threw him, and it became manifest that he was unable to extricate himself from the peril. It is held that, in such case, if the person endangered is employing proper care and diligence to escape the danger, to which his previous negligence had exposed him, the failure of those in control of the train to apply proper skill and diligence to avoid the injury, if a prompt resort to such skill and diligence might have prevented it, is wanton or reckless negligence, for which the railroad will be held accountable. The effect of the decision is not to disturb or alter the general rule as modified and expressed, but to declare, that the want of proper skill" and diligence, under such circumstances, is — 198 — wanton or reckless negligence in the sense of the rule. The emphasized reiteration of the rule in S. & N. Ala. R. R. Co.v. Sullivan, 59 Ala. 272, which was subsequently decided, though reported in an earlier volume, must be considered in reference to the facts of the case, in which the general doctrine was first declared, and as applicable to those facts. The injury in the Sullivan case occurred within the corporate limits of Birmingham, where people were constantly passing, and where it was the legal duty of those having control of the train to keep a proper lookout, and to give the usual signals. It was held, that the failure, .under such circumstances, to keep a proper lookout, and to give proper warning is, per se, negligence, and that an action will lie for an injury produced thereby, unless the person injured, after discovering his peril, fails to use proper exertions to extricate himself therefrom; and if he so fail, this would be proximate, contributory negligence, which would deprive him of all right to recover. The question again came for consideration in Cook v. Cen. R. R. & Bk’g Co., 67 Ala. 533, and arose on a charge requested, by defendants, that if the plaintiff’s intestate was in fault in being on the track of the railroad, and such fault contributed proximately to his death, the defendants can not be made liable, unless the conduct of their agents, after observing, or they could with due care, have observed, that he was on the track, was reckless, wanton, or intentional. The case was one, where the person injured was making exertions to escape the injury. The deceased, after discovering the condition of peril, in which he had put himself, was endeavoring to escape the danger at the time the injury w^s committed, -which was evident to those in charge of the train for a distance of three thousand feet. The charge was held erroneous; and was defective in ignoring this material fact in the hypothesis stated, which the evidence established. The expression of the principle, and the qualification of the rule in Hanlon’s case, though general, must be construed as referable to the case in hearing and similar cases. In the subsequent case of Cen. R. R. & Bk’g Co. v. Letcher, 69 Ala. 106, alluding to the statute, which requires signals to be given at specified times and places, it was held, that the statute does not relieve a person in peril of injury from the duty and necessity of taking ordinary care to avoid it; and does not modify or abrogate the principle, “that a plaintiff shall not recover for unintentional injuries — for injuries not wanton — to which his own negligence directly and immediately contributes.” A comparison of the several decisions shows, that they are founded on a distinction in principle between cases in which — 199 — the negligence of the plaintiff proximately contributed, and cases ■ in which his placing himself in a situation subject to peril, remotely contributed to the injury. Though it will be regarded as contributory negligence, if a person goes on the track of a railroad, or puts himself in a place so near in point of time to a collision with a passing train, as that preventive effort can not avoid it, his so doing, when danger is not immediate, does not by itself constitute contributory negligence. It is a condition which remotely contributes to the subsequent injury; but is not, in the legal sense, the proximate cause. Such negligence will not disentitle him to recover, unless he could by ordinary care have avoided the consequences of the defendant’s negligence. If the person, though having placed himself in such condition, uses the proper means to discover approaching or threatening danger, and makes proper exertions to avoid it, the liability of the defendant depends on the rule applicable in cases where contributory negligence is not.established, and turns on the issue, whether or not the injury could have been prevented by the exercise of reasonable care and prudence. But if a person, having voluntarily and wrongfully placed himself in such condition, thereby assuming its risks, fails to use the proper means to discover the peril, or on discovering it, fails to make exertions to extricate himself, the concurrence of such acts and omissions, makes a case of contributory negligence, which operates a constructive estoppel to a recovery, unless it is overcome by the defendant’s disregard, not of a particular duty to the plaintiff, but of the general duty not to inflict wanton, or reckless, or intentional injuries on another — the duty to use one’s property so as not to injure another.. — -M. & E. R. R. Co. v. Thompson, 77 Ala. 448. The rules are so declared in Gothurd v. A. G. S. R. R. Co., 67 Ala. 114, as applicable to the respective classes of cases herein distinguished. We are aware that the authorities are not in harmony as to the rule we have enunciated in cases of contributory negligence. Without reviewing them, we are content to adhere to the rule as we understand it to have been affirmed in this State, and which seems to be founded on reason and principle. The other rule introduces the doctrine of comparative negligence, and tends to confuse and mislead. In 2 Wood By. Law, § 320, the rule is stated as requiring toilful negligence on the part of the railroad company, which is sustained by respectable authorities; but we are unwilling to affirm a rule less strict than that heretofore declared by our decisions. In order not to be misunderstood, it may be observed that — 200 — when the persons in charge of the train discover the peril, or are in a position when they ought to have discpvered it — a position in which the circumstances, movements, or condition of the person injured would manifest to a vigilant observer, tbat such person is unaware of bis peril, or if aware of it, is unable to extricate bimself — a culpable omission to use the means in hand to prevent an accident, when a prompt resort thereto might have prevented it, without endangering the freight or passengers being transported on the train, will be regarded as reckless or intentional negligence. On tbe other band, the rule “ does not apply, where the manifestation of the peril and the catastrophe are so close in point of time, as to leave no room for preventive effort,” If the deceased stepped and walked on the railroad track, without using the precaution to see if a train is approaching, when it is so near that a collision can not be avoided, bis want of due care disentitles the plaintiff to recover. — Tully v. Fitchburg Railroad Co., 134 Mass. 499. An instruction asserting tbe legal proposition in tbe terms of tbe rule, based on a sufficient hypothesis, may be properly given. If tbe plaintiff apprehends tbat the generality of tbe terms may mislead, an explanatory charge may be asked. On the foregoing principles, charges one, eleven, and sixteen, given at the request of defendant, are erroneous, in that they omit from the hypothetic facts, the negligence of the deceased in failing to use means to discover his peril, and to make exertions to avoid its consequences, which is essential to relieve the defendant from liability for other than wanton, or reckless, or intentional misconduct, unless the discovery of tbe peril, and the collision were so nearly simultaneous, tbat an attempt to prevent it would have been unavailing. Reversed and remanded.