Birmingham Railway Light & P. Co. v. McLain

SIMPSON, J. The court did not err in refusing to give the general charge in favor of the defendant. While it is true that the traveler across a street railroad is required to look, before crossing, and it is also true that, if the testimony clearly shows that by looking the plaintiff could have avoided the injury, the court would be justified in giving the general charge in favor of the defendant, notwithstanding the testimony of the plaintiff that he did look (Peters v. So. Ry. Co., 135 Ala. 533, 33 South. 332), yet it is also true that the driver has a right to cross a street railroad track, although he may see a car in the distance, if he may reasonably suppose he can cross before it reaches him, and if it is apparent to the motorman that the driver has miscalculated the [659] distance or has supposed that the car was traveling at a legal rate of speed when in fact it was traveling faster, or is not aware of the approach of the car, and this is evident to the motorman, it is the duty of the motorman to slacken the speed so as to avoid the collision. There is no proof as to how fast the horse walked, and the testimony is in conflict as to how fast the car was moving. Consequently it was a question for the jury to consider how far the car was away, when the plaintiff attempted to cross. Also, was there anything in the light, or the rain, or otherwise, which prevented the plaintiff from discovering the car, or, if the plaintiff did fail to see it, or was negligent in not seeing it, and was traveling not straight across, but “angling,” did the motorman have reason to believe that he would not clear the track, in timé, and did said motorman have time to slacken the speed and avoid the injury? Nellis on Str. Surface R. R. pp. 343-346; Nellis on Str. R. R. Accident Law, § 29, p. 339 et seq. The court cannot say, as a matter of law, that the plaintiff was guilty of contributory negligence. Hence there was no error in the refusal to give charges 2 and 6. For the same reason there was no error in the refusal to give charges 3 and 4. There was no error in overruling the objections to the question to the witness Roland as to whether or not any effort was made to stop the car. This did not call for a mere conclusion of the witness, but for a fact which was open to the view of any one who saw the motorman. The witness could have been cross-examined as to his knowledge, etc. This was very different from the answer of the witness in the case of B’ham. Ry. & Elec. Co. v. Jackson, 136 Ala. 279, 34 South. 994, that “he was doing all he could.” The court did not hold, in that case, that the question was improper, but that the [660] answer, if it had been responsive to a proper question, would have been improper. There was no error in overruling the objection to the question to the witness Lucchussi as to whether the plaintiff showed any evidence of being injured. There are many injuries which a man may receive which are patent to the observation of any one. No motion was made to exclude the answer. The judgment of the court is affirmed. Affirmed. Dowdell, C. J., and Denson and Mayfield, JJ., concur.