Leak v. Georgia Pacific Railway Co.

STONE, O. J. The testimony most favorable to the plaintiff in this case shows that his intestate attempted to cross defendant’s railroad track, when there was an approaching train in very close proximity to him; that he looked neither up nor down the track, and that if he had looked, he could not have failed to see the approaching train, and thus have escaped the injury which caused his death. This, under our decisions, was negligence in him as matter of law, and not simply evidence of negligence to be passed on by the jury. S. & N. R. R. Co. v. Thomas, 62 Ala. 494; Gothard v. Ala. Gr. So. R. R. Co., 67 Ala. 114; L. & N. R. R. Co. v. Crawford, 89 Ala. 240. In the case last cited we considered'this question very fully, and need not reproduce, the authorities cited in support of it. So, in the same case, we defined the meaning, import and [163] extent of the adjectives, reckless and wanton, which, under our rulings, so intensify negligence as to make it actionable, notwithstanding plaintiff may have been guilty of negligence which contributed proximately to the injury complained of. We said that, “to have this effect, the negligence must be so pronounced, betray such indifference to injuries likely to ensue, as to be the legal and moral equivalent of intentional wrong. This is the only grade of negligence which precludes the defense of contributory negligence.” “Less than this”, we said, “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.” The defendant’s failure, if it did fail, to sound its whistle* or ring its bell, was not such reckless negligence as would overcome the plea of contributory negligence ; and under no phase of the testimony was plaintiff entitled to recover. The general charge in favor of defendant was rightly given. Affirmed. On application for a rehearing, the following opinion was delivered on a subsequent day of the term: STONE, O. J. It is contended for the appellant that the amendment to section 1147, Code of 1886, approved February 28, 1887 — (see note to that section) — has so changed the law that Thomas’ (Jase-, 62 Ala. 494, and Gothard's Case, 67 Ala. 114, are not applicable to a case like the present. We can not assent to this. The amendment has certainly enlarged the ■operation of the statute; but the chief alteration consists in shifting the burden of proof, and placing it on the railroad in certain cases, when the injury is to a person. The injury complained of in the present case was to the person, and was suffered at a public road, or street crossing; and the case, therefore, falls within the provisions of the amended statute. We can not, however, find or suppose that the legislature intended to abrogate or qualify the doctrine of .contributory negligence, when the injury is inflicted at one of the places at which the statute requires the whistle to be blown, or the bell to be sounded. The testimony as to a compliance with the statute on .the part of the railroad was in conflict. Ordinarily, this would present a question for the jury. On the other hand, there was no conflict in the testimony, that intestate attempted to cross the railroad track without looking to the right or left, and that if he had looked he could not have failed to see the [164] approaching train, and would thus have escaped harm. This was palpable negligence, and contributed proximately to his death. Application for rehearing denied.