Louisville & Nashville R. R. v. Hubbard

WEAKLEY, C. J. — The action is brought to recover damages for an injury to plaintiff’s horse, sustained by striking its foot against an iron spike which protruded above the surface of the highway at a point where the public road crosses the track of the defendant. The plaintiff was riding the horse at the time of the injury. The case was tried on counts 1 and 3. There are many assignments of error; but. pursuing our usual practice, we will consider those only that are argued and insisted on by counsel for appellant. When a public road or highway crosses the track of a railroad company, the latter is under a duty to put and keep the approaches and crossing in proper repair for [50] the use of the traveling public.—Southern Ry. Go. v. George Morris, Adm'r, 42 So. Rep. 19; Patterson v. S. & N. R. R. Co., 89 Ala. 318, 7 South. 437. While the counts are not as carefully drawn as they might have been, yet we are of opinion they are good as against the grounds of demurrer that are insisted on, and we consider no others. The protruding of an iron spike above the surface of the road upon which horse» would be liable to stumble or strike their feet while traveling along the highway and over the public crossing rendered the latter unsafe; and that this condition proximately caused the injury sufficiently appears from the counts on which the case was tried. We do.not construe the third count, as joining two causes of action. Properly interpreted, it presents the negligent moving forward of the engine and cars and the existence of the obstruction on the highway in the form of a spike above the surface as concurrently and in combination causing the injury and damage.—K. C., M. & B. R. R. Co. v. Burton, 97 Ala. 240, 249, 12 South. 88. Both counts show a breach of duty to plaintiff, a.traveler on the highway. 11: was not necessary to introduce averments acquitting plaintiff of contributory negligence, since- such negligence, if it existed, would be defensive matter. The evidence was undisputed that the crossing was public, and that- planks had been placed between the rails to facilitate passage over it. Signboards were also located there. Several of the witnesses for the plaintiff testified without objection that a. public road crossed the track at the point of the accident, and the records of the court of county commissioners, introduced in evidence state the establishment of the road as viewed and reported. The testimony of the defendant’s conductor whom it offered as a witness, shows the place of the accident was a regular public crossing. Such being the state of the evidence, the court might have assumed that the averment of the complaint as to the public highway was proven, without submitting the inquiry to the jury. There was no error in allowing a witness to state that there were show cars on the side track of the main line. This merely explained conditions existing- near ■the place at the time, and was but a part of'the-photo [51] graphic view, so to speak, furnished the jury of the surroundings. It was not offered as tending to show negligence, and the circuit court instructed the jury it could not be considered as a negligent act on the part off the defendant. There was no error in allo wing proof that the railroad had signboards at the crossing, as this Avas a recognition of its public character. The only insistence in support of the affirmative charge requested by the defendant is that no legal evidence was offered to proAre the existence of the public highway across and over the defendant’s track. We have already shown that there was such evidence. Charges 10 and 12 Avere properly refused. Neither-postulated the acts of negligence averred in the pleas. Charge 5, requested by defendant, seems to have been founded upon or suggested by a paragraph in the opinion in Patterson v. R. R. Co., 89 Ala. 318, 321, 7 South. 437, Avhich undertook to define what would be a sufficient discharge of the duty devolving upon a railroad company to put and keep the approaches and crossings in proper repair for the traveling public when its road is constructed across a public highway. By the use of the word “unnecessarily”, in place of the word “materially”, employed in the opinion in the paragraph mentioned, the charge was rendered inaccurate and misleading, if not positively erroneous. Charge 7, given for the defendant, properly stated the degree of care required off the defendant in respect of the safe and convenient condition of the crossing. There Avas no error in refusing charge 5. Charge 18 was rightly refused. Aside from other possible criticisms, it was in part addressed to the second count, which had been withdrawn, and Avas also bad in form, in requiring a finding for the defendant on the two counts named; there being another count in the complaint. No reversible error appearing, let the judgment be affirmed. ' ■ ' Affirmed. Haralson, Dowdell, and Denson, JJ., concur.