Louisville & Nashville Railroad v. Mosby

SHARPE, J. So imminent is tlie clanger from collisions at railroad crossings, that the conduct of those operating trains at such places has become the -subject «of statutory regulations made for the prevention of injury to persons and property. The Code of 1886, in force when the plaintiff’s injury occurred, provided by § 1145 that: “When the tracks of two railroads cross each other engineers and conductors must canse the trains -of which they are in charge to come to a full stop within •one hundred feet -of such -crossing, and not to proceed until they know the way -to be clear; the train on the-road having the -older right -of way being entitled to cro-ss first.” To add stringency to these requirements, their non-observance was punishable as a crime. — Code, 1886, § 4108; pie-sent Code, § 5371. Considered with ■regard to civil consequences, the non-performance of these statutory duties by those upon whom they are imposed is negligence per se, which is not excused except 'by diligent effort to perform or by the existence of conditions which render their performance impracticable. R. & D. R. Co. v. Freeman, 97 Ala. 289. The collision in question was with the engine on defendant’s road and that on which plaintiff as engineer was in charge. It occurred at night and resulted in •disaster to both engines and their engineers. As to whether defendant’s train was run upon the crossing without stopping, the evidence is conflicting. Assuming "that much -of it amply tended to fix the charge of negligence on the defendant, which would warrant-a recovery therefrom by the plaintiff in the absence of concurrent fault -on lii-s part, the plaintiff’s conduct is next to be considered. There is evidence, which, though -disputed, tends to show that -the plaintiff stopped his train within the re-quired distance of the crossing. The train was running [347] bff schedule time. Its headlight lamp was without oil and had been substituted by a lantern giving an inferior light. The plaintiff testifies that he stopped his train within GO or 75 feet of the crossing and did not hear the L. & N. train. He says: “I only stopped a moment, just barely stopped dead still long enough to look and see if I could see anything; that was only an instant. I then started up and got 20 feet from the track when I heard the other train and it wa.s 300 to 500 yards -aAvay, I suppose. * * * All that I had time to do was to put on the air brakes. When I stopped the pilot of my engine was just over the crossing. * * * It had come to a stop just as the other 'engine came against it.” He further testifies that when starting to move. lover the crossing he looked to the right and straight ahead and saw no light from the L. & N. train. He does not testify that he looked to the left along the L. & N. road for trains that might he approaching o'n that road, and it was from that direction that the train with which he collided came. From the whole evidence 'it is plain that if he had so looked he would have been apprised of the danger of proceeding, for without conflict the evidence shows that the train on the defendant’s road whether it was running or was stopped near the crossing, as is claimed by some of the witnesses, could easily have been seen. Its headlight was burning brightly and its engine was emitting sparks. It was seen by others, and the conductor of the plaintiff’s train tesifies that while his train was stopping for the crossing-lie saw the. headlight of the -other approaching. There is evidence tending to show that the place occupied by the plaintiff was on the right of the engine’s boiler and that while in that, position his view to the left, was obstructed by machinery of his engine and the sides of the engine cap. Such obstruction, if it existed, must have increased rather than lessened the danger of the situation and eerainly did not excuse the lack of precautionary outlook which the plaintiff might have obtained by changing his -position. Independent of statute, the dictates of common prudence require that one about to cross a railroad at the [348] grade of its track should use his natural senses to discover the approach of trains, and especially does this apply to an attempt to -cross in so cumbersome a conveyance as a railroad train. The duty -created by such circumstances to stop, look and listen, which has so-often been -declared by this and other courts, is stated with emphasis in the recent case of Central of Ga. R. Co. v. Foshee, ante, p. 199. It is contended for the plaintiff, however, that the-plaintiff had the right to rely upon the presumption that the defendant’s employes would themselves observe the legal requirements before crossing, and counsel cite in support of that position the cases of R. & D. R. Co. v. Greenwood, 99 Ala. 511, and Birmingham Mineral R. Co. v. Jacobs, 101 Ala. 149. The presumption-, referred to in those cases is but the general one that, no one will violate the law. To an extent and with proper limitations, such a presumption may be relied on by one who is in the situation to indulge it, 'as where-he is himself in the exercise of due care. — Beach on Contributory Neg., § 185. The principle is misapplied if depended upon to excuse the plaintiff’s own dereliction. Tlie reliance upon others must not be a blind one, nor is it allowed to supersede the performance of duties-■which rest correspondingly upon those who are about to-enter upon a dangerous situation. The evidence here leads to the certain -conclusion that the plaintiff failed' in the duty of watchfulness, if in no other, and that his -own negligence in that respect contributed proximately to his injury. For this reason the general affirmative charge requested by the defendant -should have been given. It is unnecessary to consider the assignments of error in detail. The judgment will be reversed and the cause remanded.