Birmingham Southern Railroad v. Powell

DOWDELL, J. Tbis is an action brought by tbe plaintiff to recover damages for personal injuries received in a collision between tbe cars of tbe defendant company and a car of tbe Birmingham Bailway. & Electric Company, at an intersection or crossing of tbe tracks of tbe two companies in one of tbe public streets of tbe city of Birmingham. Tbe complaint contained five counts, all of which, except tbe second, charged simple negligence. The second count, as amended after demurrer sustained to it, charged wanton or intentional injury. Six pleas were filed by the defendant, tbe first plea being tbe general issue to all the counts; tbe second, third, fourth, and fifth pleas being pleas of contributory negligence, and were pleaded to each of tbe counts, except tbe second count. The sixth plea was a special plea to tbe second, setting up an assumption of risk on tbe part of tbe plaintiff. To tbis plea a demurrer was interposed by the plaintiff, and was sustained by tbe court, and tbis action of the court constitutes tbe first assignment of error. The assumption of risk by one, no more than contributory negligence, can be set up as a defense to a count charging intentional injury and wrong. Tbis doctrine was plainly laid down by tbis court in the case of L. & N. R. Co. v. Orr, Admr., 121 Ala. 489. See also L. & N. R. Co. v. Markee, 103 Ala. 160. The court properly sustained tbe demurrer to this plea, under tbe principle stated in tbe two cases cited above. At tbe time of tbe accident in which tbe injury com [240] plained of was received, tlie plaintiff, Powell, was a conductor on the car of the Birmingham Railway & Electric Co. that was run into by a train of cars of the defendant company. The collision occurred at a crossing of the tracks of the two companies in a public street of the city of Birmingham. The undisputed evidence shows that the defendant company’s agents or employes in charge of its train, were at the 1¿me making what is called a drop switch, of a number of its cars, which Avere loaded Avith coal; that a train of nine cars Avas detached or cut loose from the engine and permitted to run or roll of its OAvn momentum doAvn an incline to the said crossing; that this train of nine cars Avas detached from the engine at a point about six hundred and seventy feet from the crossing. The undisputed evidence further sIioavs that the car of the Raihvay & Electric Co, of AAdiich the plaintiff had control as conductor, and AAdiich AAras run into by the defendant’s train of cars which had been detached from the engine, stopped within about fifteen feet of the crossing of the two roads before proceeding to make the crossing, and after having so stopped, did proceed to cross, and in doing so stopped again upon the crossing in front of the approaching detached train of cars; that the stop of the electric car upon the crossing Avas due to a failure of the electric current just at that moment, and by reason of such failure of the electric current the said car was rendered helpless. The motorman of the electric car seeing the perilousness of his situation abandoned his post, Avhen the plaintiff Avent to it and attempted to Avork the controller AAÚth the purpose of backing the car off the crossing, and Avhile so engae-ed in this effort, the collision occurred producing his injury. The evidence fails to sIioav that the plaintiff, conductor of the electric car, in making the stop' before attempting to cross the tracks of the defendant company’s road, made any effort to ascertain or know that the way was clear before proceeding to cross. The evidence shows that the stop was made within fifteen feet of the crossing, but as to any attempt on the part of the plaintiff to know that the [241] way was clear, it is perfectly silent; on the contrary, his own testimony is, that he was at the time collecting fare from a passenger. The evidence is in conflict as to the speed at which the detached train of cars of the defendant company was running at the time of the collision; the plaintiff’s witnesses testifying to a speed of fifteen miles an hour, while the witnesses of the defendant testify to a speed, of three or four miles an hour. There was also a conflict in the evidence as to whether there was any one on the detached cars, and as to whether there was a flagman at the crossing to give warning of the approach of the detached cars. The.evidence of the plaintiff tended to show that there was no person on the detached cars, but that the same were running loose without any one in control, and, also, that there was no flagman at the crossing. The defendant’s evidence tended to show that a brakeman was on the detached cars, and was at the time setting up the brakes to stop the cars, also, that there was a flagman at the crossing to guard against danger, and that such flagman gave warning to the motorman on the electric car not to come onto the crossing. There was also introduced in eAÚdeuce an ordinance of the city of Birmingham making it a penal offense to make what is known as a flying or running switch, or drop SAvitch, over, on, or across any street, avenue or alley in the city. Counsel for appellant do not deny, but on the other hand concede, that the defendant company is chargeable Avith simple negligence in the acts and conduct of Its employes in making the drop SAvitch in violation of the city ordinance, which prohibited it, but they contend that the plaintiff was also guilty of negligence, Avhich contributed proximately to his injury, in entering' upon or attempting to make the crossing without first stopping and knoAving that the way was clear before proceeding to cross, in obedience to the mandate of the statute. — § 3441 of the Code. That the provisions of section 3441 of the Code, imposing certain duties upon railroad companies, whose tracks cross each other, at such crossings, are applicable [242] to railways using electricity as a motive power., seems to have been definitely settled by this court in the case of L. & N. R. Co. v. Anchors, Admx., 114 Ala. 492. Approving the doctrine there laid down and applying the principle to the undisputed facts in this case, the plaintiff was guilty of negligence in his failure to exercise that high degree of care and diligence, which the law put upon him to know that the way was clear, before proceeding to cross with his car. For, as was said in the case of Southern Railway Co. v. Bryan, 125 Ala. 297, the duty of knowing the way to be clear before attempting to cross, is just as imperative as the duty of stopping within the distance designated in the statute, before attempting to make the crossing. It is insisted that there was no evidence of intentional or wanton injury, and therefore the court erred in refusing the general charge requested by the defendant. The evidence of the plaintiff tended to show there was no brakeman or other person on the train of the nine loaded coal cars when the same were cut loose from the engine, to control them, and' without anyone to manage or control the same, these were suffered to run dawn grade at a speed of fifteen miles an hour across the tracks of the electric car line and across a public street of the city. That the conductor of the defendant company’s train, who cut the cars loose, was familiar with the crossing; “that they all knew that there were electric cars running out to Ensley and back over the crossing every few minutes in the day, and that cars were running over the same crossing from Birmingham to Avondale and back every few minutes during "the day, and that there were no interlocking crossings or derailing switches at the crossing; that there were no safety .appliances to prevent collisions at this crossing.” This phase of the evidence made it proper to submit the question of wantonness to the jury. For under it, if believed, Avhen taken in connection with the additional tendency, showing a willful violation of both the statute — § 3441 of' the Code — and the city ordinance above mentioned, the jury would have been authorized to infer from the [243] acts and conduct, of the defendant’s agents a reckless indifference to probable consequences of harm, and injury to others, and that such' acts were performed with a knowledge of facts and conditions, that rendered the, same greatly dangerous to the lives of others, and a probability that they would result, injuriously. This degree of recklessness, with a conscious knowledge of its probable harmful consequences, constitutes that wantonness, which in law finds.its equivalent in point of responsibility, to willful or intentional wrong. The tendencies of the plaintiff ’s evidence in this case, make a stronger case than that of L. & N. R. Co. v. Webb, 97 Ala. 308, where it wás held that the question of wantonness was properly submitted to the jury. See also A. G. S. R. R. Co. v. Anderson, 109 Ala. 299. We do not find anything that is said in the cases cited by appellant’s counsel, under the facts in those cases, inconsistent with what we have above stated as applicable to the facts which'the evidence tended to show. The general charge requested by the defendant was properly refused. And likewise, the written charges requested, instructing the jury generally to find for the defendant on the theory of contributory negligence, pretermitting all inquiry as to wantonness under the evidence. That portion of the oral charge of the court excepted to, by the defendant, and here insisted on as error, is nothing more than a statement of the law as laid down in R. & D. R. Co. v. Greenwood, 99 Ala. 515; Birmingham Min. R. R. Co. v. Jacobs, 101 Ala. 149; 13 So. Rep. 411. Moreover, we find in the record among the written charges given by the court, at the request of the defendant, a charge instructing the jury that the plaintiff was guilty of negligence in going on to the crossing before knowing the way to be clear. This was nothing more nor less than the general charge in favor of the defendant as to the defense of contributory negligence which was set up in answer to counts in simple negligence. We find no reversible error in the record, and the judgment will be affirmed.