Louisville & Nashville R. R. v. Crawford

STONE, O. J. Tbe injury complained of in this case occurred in tbe night-time, at the crossing of Twenty-fourth street, city of Birmingbam, by tbe defendant corporation’s railroad, and by tbe track of the Alabama Great Southern Railroad Company. Tbe plaintiff was the hired employee of both of said railroad companies, and was watchman and flag-man for each of them at said crossing. It was part of bis duty to keep a look-out for persons, vehicles and other obstructions that might be on said crossing, and, when danger was discovered, to give warning, for tbe purpose of avoiding accident or injury. Tbe crossing was within tbe area covered by tbe •defendant railroad in its switching operations. Tbe railroad tracks at that point are parallel, and run east and west. Tbe plaintiff was on tbe track of tbe defendant [244] railroad company, and stationary, or moving leisurely, looking eastward all the while, and not looking west. Defendant’s switch-engine, pushing a box car, approaching from the west, struck him, and did him serious injury. ¥e will not undertake to show that the defendant was not guilty of negligence. Some of the testimony, if believed, shows that it was so guilty. There is no testimony, however, which tends to prove that degree of wanton or reckless negligence, which precludes the defense of contributory negligence. If plaintiff was guilty of negligence, which contributed proximately to the injury he suffered, the law denies to him all right of recovery. We have many times declared this rule. It is at all times a dangerous trespass to stand or walk on a railroad track, without preserving a watchful outlook for approaching trains. In S. & N. R. R. Co. v. Thompson, 62 Ala. 494, this court said: “It is the duty of travellers, 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.” In Gothard v. Ala. Gr. So. R. R. Co., 67 Ala. 114, we quoted the following language, without dissent: “As a general rule, it is culpable negligence to cross the track of a railroad at a highway crossing, without looking in every direction that the trains run, to ascertain whether a train is approaching. If a party rushes into danger, which by ordinary care he could have seen and avoided, no rule of law or justice can be invoked to compensate him for any injury he might receive. He must take care, and so must, the other party.” In Railroad Company v. Houston, 95 U. S. 697, the language of the court was: “The failure of the engineer to sound the whistle, or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her- safety. Negligence of the company’s employees in these particulars, was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive [245] her of any right to complain of others.” And in Continental Improvement Co. v. Stead, same vol. 161, that court said: “Those who are crossing a railroad track are hound to use ordinary care and diligence to ascertain whether a train is approaching. f They have, indeed, the greatest incentive to caution, for their lives are in imminent danger if collision happens; and hence it will not be pretended, without evidence, that they do not exercise proper care in a given case. But, notwithstanding the hazard, the infirmity of the human mind in ordinary men is such, that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them — such, namely, as an ordinary prudent man would exercise under the circumstances. When such is the case, they can not obtain reparation for their injuries, even though the railroad company be in fault. They are the authors of their own misfortune.” In Durbin v. Oregon & Nav. Co., 32 Amer. & Eng. R. R. Cas. 149, “Plaintiff had passed the crossing many times before, and was familiar with it. She had always used great care in looking for trains, but on this occasion she did not stop to look or listen. Her team came into collision with a passing engine, and she sustained considerable damage. Held, that the plaintiff was guilty of contributory negligence, and could not recover.” Mr. Beach, Contributory Negligence, § 9, says: “It is tolerably well settled that, under such circumstances [crossing a railroad track on grade], a traveller must look up and down the track attentively, and a failure to do this is generally negligence as a matter of law.” We might add citations indefinitely, but consider the foregoing as sufficient. We regard the question as settled in Alabama, by our rulings cited above; and that a failure to employ the senses on' approaching a railroad crossing, when such employment would insure safety, is, as matter of law, contributory negligence, and a complete defense to a suit for injuries sustained by the negligent handling of the railroad, unless such negligence was so reckless and wanton, as to be, in law, the equivalent of willful or intentional.—Tanner v. L. & N. R. R. Co., 60 Ala. 621; M. & C. R. R. Co. v. Copeland, 61 Ala. 376; Cook v. Cen. R. R. & B. Co., 67 Ala. 533; Cen. R. R. & B. Co. v. Letcher, 69 Ala. 106; 3 Brick. Dig. 372, 25 et seq. It' is not every degree of recklessness that will bring this [246] doctrine into play. It must sustain a causal relation to the injury inflicted, and must raise such strong implication of reckless indifference, as to supply the bad element of willfulness or intention, and abstention from preventive activity, which, if exerted, might avert the catastrophe. This is the degree of recklessness which intensifies and magnifies negligence, until it becomes the legal and moral equivalent of willful or intentional wrong. Less than this, if held sufficient in degree, would, in many conceivable cases, secure to the complaining party a right of recovery, notwithstanding his own contributory negligence may have been as gross and reckless as that of defendant.—Beach on Contr. Neg. §§ 21, 22; Tanner v. L. & N. R. R. Co., 60 Ala. 621; Gothard v. Ala. Gr. So. R. R. Co., 67 Ala. 114; 4 Amer. & Eng. Encyc. of Law, 80, 81, and notes; Frazer v. S. & N. R. R. Co., 81 Ala. 185. The principle we have stated is closely allied to the secondary stage of peril, and the duties it calls into exercise, stated approvingly in Tanner's Case, 60 Ala. 621. See Terre Haute & I. R. R. Co. v. Graham, 12 Amer. & Eng. R. R. Cases, 77; Chicago & Eastern R. R. Co. v. Hedges, 25 Ib. 550. No man should put himself in peril; and if he negligently do so, the duty of active effort to avert injury is as binding on him, as is the defendant corporation’s duty to do all in its power to extricate him. If he fails in this, when such effort would probably save him from harm, he can not be heard to complain that the defendant failed to do for him what he neglected to do for himself. We have stated the duty required of mere travellers. By how much stronger reason should it be exacted of a watchman, or flag-man, whose special office requires him to watch and give warning to others of approaching danger ? The City Court erred in refusing to give each of the charges two and six, asked by the defendant. The third count of the complaint is sufficient, and the demurrer to it was rightly overruled. Reversed and remanded.