Highland Avenue & Belt Railroad v. Fennell

MoCLELLAN, J. There is evidence in this case tending to show negligence on the part of the defendant’s engineer in respect of his duty to ring the bell on his locomotive while going along a street of the city of Birmingham and also in respect of the rate of speed he maintained on 1st Avenue just before and up to the collision . 'Whether the tendency of any of the evidence imputed negligence to him in failing to properly exert himself to avert the collision after he saw or was in position to see the car on which plaintiff was riding is not so clear; but that we need not decide, because, finsi, it is immaterial so far as the request by defendant for the affirmative charge is concerned, since, as we have seen, there was evidence supporting the other two counts of the complaint, and the charge requested which had reference to the engineer’s conduct as to stopping his train tended to mislead the jury as to the real issue under the fourth count,-which was whether he was negligent after being in a position to see, and not after he saw, the car on which plaintiff was riding ; and, second, it is unnecessary to decide the question stated for that our conclusion will be that the defendant was entitled to the affirmative charge on its plea of contributory negligence. We think it was shown by the evidence without conflict or contrary inference that the plaintiff was guilty of negligence either in attempting to run his car across the track of the defendant in front of defendant’s train, having seen the approach of the said train, or in making such attempt without looking to see whether a train was approaching on defendant’s line. The Highland train must necessarily have been in 1st Avenue when the car on which plaintiff was riding ran out into that avenue and stopped within 5 or 6 feet of the East Lake track. Plaintiff was on the rear platform of his car, and this [361] position is shown by the evidence to have been several feet out in the avenue beyond the line of the houses. There was at that time no obstruction whatever to plaintiff’s view up 1st A verme, the East Lake train not then having crossed 20th Street going north, and plaintiff could have seen a dummy train up as far as 22d Street, a distance of 880 feet. Defendant’s train was then within this distance. Having this commanding point of view, it is of no consequence whether plaintiff looked up the avenue or not. If he did look, the conclusion is inevitable that he saw defendant’s train approaching, and, on this assumption, he was clearly guilty of negligence in attempting to cross in front of it, especially as it had the right of precedence at the crossing. If he did not look, this was equally negligent, as has been many times declared by this court. Even after the East Lake train had crossed 20th Street or while it was crossing, plaintiff might easily have seen the Highland train coming down the avenue ; but knowing that the East Lake train, as soon as it crossed the street, would practically obstruct the view of defendant’s track, the duty of looking for defendant’s train was on the plaintiff from the time that train began to- cross over 20th Street. The other circumstances in evidence go to accentuate this duty. It is said that the Highland train should then have been at 19th Street, but it was not there as was plainly to be seen by the plaintiff after the passing of the East Lake train. There is, therefore, nothing in the suggestion that plaintiff had a right to assume that defendant’s train had already passed. On the contrary, the fact that said train had not passed on to 19th Street, which was its terminus, was notice to plaintiff that it might come down the avenue to and across 20th Street at any moment, as it was past due, and should have quickened his alertness to discover its approach and keep out of its way. We see no escape from the conclusions, (1) that the duty of keeping a lookout for the Highland train as plaintiff approached defendant’s track was on him ; (2) that if he discharged this duty he saw the Highland .train approaching the crossing, and, knowing it had the right of way, yet attempted to cross its track in front of it; this was negligence if not recklessness; (3) that if he failed to discharge this duty, omitting to look, he was [362] equally guilty of negligence; and (4) that his negligence proximately contributed to the injuries of which he complains. The court, therefore, erred in refusing the affirmative charge requested by the defendant. Reversed and remanded.