Birmingham Southern R. R. v. Kendrick

ANDERSON, J. Conceding, without deciding, that the act of the plaintiff in climbing over the cars at the place designated in the complaint did not constitute him a trespasser, in the sense in which the term is usually understood, he was clearly in no better position to de: mand a greater degree of care from the defendant than if crossing the track in the ordinary way, instead of climbing over the drawheads of the cars. The crossing, set out in counts 1 and 2 of the complaint, is not a public crossing; but conceding, also, that it was so used as to constitute persons using the same for crossing the track licensees, instead-of trespassers, this fact would not impose upon the railroad the duty of giving the statutory warning. “All that can be required of a railroad com [358] pany, operating its trains over its own track under such circumstances, is to perform its duty in looking ont for obstructions, and to use due care and reasonable diligence to avoid inflicting an injury to persons after becoming conscious of the peril. When the railroad has done this, it has discharged its duty to the person undertaking to cross its track at such crossing.” — A. G. S. R. R. v. Linn, 103 Ala. 139, 15 South. 508; Pratt Co. v. Davis, 79 Ala. 308;Tanner’s Ex’r v. L. & N. R. R. Co., 60 Ala. 621. Counts 1 and 2 do* not charge simple negligence, in that they do not show that the defendant owed the plaintiff any duty to do the things the omission of which constitutes the negligence charged. Nor do said counts charge wanton or willful misconduct. Conceding that they charge a consciousness on the part of the servants operating the train of the fact that this was a populous crossing, and a knowledge on their part of the danger of running of cars at said point, the complaint does not charge that said servants were conscious of the fact that people frequently .crossed at said point by climbing over the drawheads of the cars. People may have crossed there in great numbers; but it was not to be assumed, from this fact, that when said crossing was obstructed by defendant’s cars that they would cross by climbing them. The trial court erred in not sustaining the demurrers to counts 1 and 2. The fourth count avers that the cars were left upon a street, and which is doubtless a public highway; but it does not aver that the plaintiff was injured at the intersection of the street with defendant’s track — that is, while attempting to cross over at a public crossing. The cars may have been lying in the street, parallel therewith, and there is nothing to show that they were moved across a public crossing. The statute requires the warn [359] ing only upon approaching and going over public crossings. Section 3440 of the Civil Code of 1896. Nor does the complaint aver any other facts sufficient to require the doing of the thing the omission of which constitutes the negligence charged. The complaint does not aver any knowledge on the part of the defendant’s servants that people were in the custom and habit of crossing at the point where plaintiff was injured by climbing upon and over the cars or the drawheads of same. The trial court erred in not sustaining the demurrer to the fourth count. The judgment of the city court is reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J., and Dowdell and McClellan, JJ., concur.