Southern Railway Co. v. Lawler

WALKER, P. J. This was an action to recover damages for the killing of a horse by a train of the appellant (defendant below) at a crossing of its track and a street in the city of Huntsville. The complaint contained three counts, one charging simple negligence, another wanton negligence, and the th-ird negligence subsequent to the discovery by the defendant, its agents, servants, or employees, of the horse’s dangerous proximity to the track as the train approached the crossing. The case was tried on issue joined on the plea of the general issue, with leave to offer in evidence any matter or thing which would be a good defense in bar. The horse in question was one of a team being driven to a wagon by an employee of the plaintiff. The defendant’s track in the direction from which the train was approaching curved towards the crossing for a considerable distance, and until it was within a few feet of the crossing. The train and the wagon were going in [246] the same general direction, eastwardly. The engineer from his position in the right hand side of the engine could not see the crossing or the team approaching it from his left until he was within a few feet of the crossing, as he was on the outside of the curve, and the boiler of the engine obstructed his view in that direction. It was the duty of the fireman to sit on the left-hand side of the engine, and to be on the lookout. He was in that position as the train approached the crossing, and there was evidence tending to prove that from his position he could and did see the team and wagon approaching the crossing, and was aware that the driver was unconscious of the danger and would do nothing to avoid it in time to notify the engineer of the fact, and for the latter to avoid a collision at the crossing. The fireman testified that he did not notify the engineer when he first saw the team approaching the track, saying, “When he drove up to the track I thought sure he would stop.” But there was evidence tending to prove that from the time the fireman first saw the team the driver of it was looking in the direction opposite to that from which the train was approaching, and that his conduct indicated unconsciousness of danger at the crossing and the absence of an intention to stop before reaching it. Notwithstanding what the fireman said as to what he thought, there was evidence to' support the inference that he negligently failed to do his duty after the situation at and about the crossing was fully disclosed to him. The subsequent negligence count was supported by the evidence tending to prove that the killing of the horse was attributable to the negligence of the fireman in failing, after becoming aware of the peril, and of the driver’s unconsciousness of it, to notify the engineer in time to enable him to avert it. — Louisville & Nashville R. Co. v. Calvert, as Adm’r, 172 Ala. 597, 55 South. 812; [247] Southern Railway Co. v. Gullatt, 158 Ala. 502, 48 South. 472; Southern Railway Co. v. Shelton, Adm’r, 136 Ala. 191, 214, 34 South. 194; Southern Railway Co. v. Bush, 122 Ala. 470, 26 South. 168. If the injury complained of 'was attributable to such subsequent negligence of the defendant’s employee as its proximate cause, the prior negligence of the driver of the team would not bar the plaintiff’s right to recover. — Louisville & Nashville R. R. Co. v. Young, 153 Ala. 232, 45 South. 238, 16 L. R. A. (N. S.) 301; Randle v. Birmingham Railway, Light & Power Co., 158 Ala. 532, 48 South. 114. Charges 3, 4, 5, 6, 8, 12, 13, 15, 16, 17, 18, and A, re-. quested by the defendant, were properly refused, as each of them in its statement of a predicate for a verdict favorable to the defendant omitted any reference to the phase of the evidence above referred to which tended to prove subsequent negligence as alleged. Charges 2 and 7, requested by the defendant, were well refused, as each of them in effect improperly asserted that the burden was upon the plaintiff to disprove the contributory negligence relied upon by the defendant. — Ledbetter v. St. Louis & S. F. R. Co., 184 Ala. 457, 63 South. 987. The form of refused charge 19 justified the court in refusing to give it. There being three counts upon which the case was submitted to the jury, the court was not bound to require them to render a verdict as to each or either of the counts specifically. — Western Steel Car & Foundry Co. v. Cunningham, 158 Ala. 369, 48 South. 109. To say the least of it, charge B Avas so calculated to mislead that the court is not chargeable with error for refusing to give it. It was so expressed as to be liable to convey the impression that the fireman was under no duty in reference to stopping the train in order to avoid [248] a collision at the crossing. His duty to keep a lookout, carried with it a duty to inform thé engineer of a dangerous situation 'which, because of the latter’s position on the engine, was not otherwise discoverable by him in time to adopt preventive measures. If, as there was evidence tending to prove, while both the team and the train were so far from the crossing that the danger of a collision was not yet imminent, the fireman discovered that the driver of the team was proceeding on his way in unconsciousness of the approaching train, it was his duty to inform the engineer of this situation, which, if .it remained unchanged, would soon become one of peril, so as to enable the latter to take steps to avoid a collision before it was actually imminent. Furthermore,when the fireman discovered that the driver of the team was apparently unconscious of the train’s approach, he could not, without being chargeable with negligence, refrain from giving a warning, if a way of doing so was available to him, as by ringing the bell. This statement discloses faults in charge C, justifying the court’s refusal to give it. Refused charge E was erroneous, as in effect it stated a proposition which cannot be reconciled with the statutory requirement as to the signals to be given in approaching and passing a public road crossing. — Code, § 5478. The pleadings in the case involved no issue of willfulness, and the court was not required to give instructions as to such an issue. It follows that reversible error was not committed by the refusal of the court to give charges F and G. Furthermore, charge F was objectionable, in that it asserted no- proposition of law. — Mobile Light & R. R. Co. v. Walsh, 146 Ala. 295, 40 South. 560. Without inquiring whether refused charge L was or was not otherwise faulty, its incorrect statement as to [249] contributory negligence of the defendant’s driver was enough to justify the court’s refusal to give it. Affirmed.