East Tenn., Va. & Ga. Railway Co. v. Kornegay

WALKER, J. On the 5th day of March, 1889, one of the ■defendant’s trains going East and another of its trains going W est met at Yan Dorn, a flag station on the defendant’s road, .and the regular meeting point of the two trains. At that place the' defendant’s main track and a side track run East and West, the side track being North of the main track. On the day mentioned the East bound train stopped on the main track, and the West bound train took the side track. When the two trains arrived, the plaintiff was at his nephew’s house, about one hundred yards North of the point where a public dirt road crossed the two tracks. The plaintiff left that house for the purpose of going to see a person who was a passenger on the East bound train. When he got to the gate leading-out of the yard in which the house stood, both of the trains had stopped. When the plaintiff reached the road crossing the ■engine atl ached to the West -bound train was standing still across the dirt road ; the plaintiff passed by the side of the engine and walked along in a westerly direction and parallel with the track, and about three or four feet from the track a ■distance of thirty or forty feet, and then turned and stepped [230] on to the side track in the direction of the East tyound train, which was still standing on the main track." Justas plaintiff’s foot touched the cross ties on the side track he was knocked down by the engine of the West bound train and both of his. feet were bruised so that he was confined to his house for some time. Plaintiff did not, before stepping on the track, look back in the direction from which the train was approaching. There was testimony tending to show that the engineer of the-West bound train did not sound the whistle or ring the bell before starting the engine after plaintiff passed it. When plaintiff was struck the engine was moving slowly and it was stopped after going eight or ten feet farther. The above stated facts were shown without contradiction. All the witnesses who-were examined were introduced by the plaintiff. The evidence-tended to show negligence on the part of the defendant in the failure of the person or persons in charge of the engine to sound the whistle or ring the bell. But it appears from the plaintiff’s own testimony that he was guilty of negligence proximately contributing to the injury. It is plain that he undertook to cross'the railroad track without stopping or looking or listening to ascertain if a train was approaching. He says himself that he did not stop or look. When he passed the engine it was standing still on a down grade. It appeared from the testimony that the engine could not have been put in motion without making a noise, which the plaintiff must have heard if he had been listening. He was injured just as-he stepped on the track, and there was no proof tending to-show that the person or persons in charge of the engine saw him in a position of peril in time to give him warning or to check or stop the engine or that there was anything to indicate to them that he would attempt to cross the track in front of the engine. The plaintiff was not in apparent danger until he turned and stepped on the side track. ITe was bound to look and to listen before attempting to cross the track. His neglect of this duty avoids his right of recovery in the absence of evidence tending to show that defendant was guilty of negligence so reckless or wanton as to be, inlaw, the equivalent of willful or intentional wrong.—Louisville & Nashville R. R. Co. v. Webb, 90 Ala. 185. The record does not disclose any such evidence. Plaintiff' had placed himself m the position of danger and had been injured before the defendant or its employes had an opportunity to take measures to avert the casualty, and on the .evidence, willfulness or wantonness could not- be imputed to the defendant. The Circuit Court erred in refusing to give the charge numbered 1 requested by the defendant. Reversed and remanded.