L. & N. R. R. v. Calvert

ANDERSON, J. Count 2, as amended, was sufficient as a subsequent negligence charge, and the point upon which this court divided as to count 2 in the case of L. & N. R. R. Co. v. Calvert, 170 Ala. 565, 54 South. 184, was eliminated by the amendment. The trial court erred in so much of the oral charge as was excepted to by the defendant. If the plaintiff’s intestate was guilty of contributory negligence in being upon the track, the only duty that the defendant owed him was not to willfully or wantonly run over him, or not to negligently run over him after discovering his peril, and contributory negligence is a complete defense to a negligent failure to discover his peril.— Anniston Co. v. Rosen, 159 Ala. 195, 48 South. 798, 133 Am. St. Rep. 32; A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, and cases cited on page 277, 47 South. 84. Count 1 only charges simple negligence, but under our system of pleading it was sufficient to authorize proof of and a recovery for subsequent negligence.— McWhorter’s Case, supra, and Foshee’s Case, 125 Ala. [601] 199, 27 South. 1006. It may therefore be conceded that the intestate was guilty of contributory negligence in going on the track, for he was guilty if he did so without stopping to look and listen, and this duty was not discharged by stopping once, some distance off, as the law requires a continuing duty to see that the way is clear before attempting to cross, if he can stop, look, and listen, and thereby ascertain that the way is clear by doing so. “He must stop so near the track, and his survey by sight and sound must so immediately precede his effort to cross over it as to preclude the injection of an element of danger from approaching trains into the situation between the time he stopped, looked, and listened and his attempt to proceed across the track.”— Central of Ga. Rwy. Co. v. Barnett, 151 Ala. 407, 44 South. 392; Foshee’s Case, 125 Ala. 212, 27 South. 1006. There was evidence, however, for the jury to determine whether or not the engineer discovered the peril of the intestate in time to have averted striking him by resorting to preventive means, and whether or not his failure to resort to such means was the proximate cause of the intestate’s death. It is true that the engineer testified that he 'did not see the horse until about the time of the collision, and, if this was true, there was no subsequent negligence. The engineer said, however, he was looking straight ahead, and it may be that his vision, if looking straight up between the rails, extended no considerable distance outside of the rails; yet it was for the jury to determine how far he could see one approaching the track before he actually got on same. There was proof that the right of way was clear, and it was not only a question for the jury, but is a matter of common knowledge, that if one looks a considerable distance ahead, though the eye is aimed at a certain point or object, that the sight will take in to [602] some extent the surrounding or adjacent space, and it was open to the jury to determine that the engineer discovered the horse and buggy approaching the crossing and before the collision. There was also proof that the front wheels of the buggy had gotten over, and only the hind wheels remained on the track, when the collision occurred, and the slightest delay or slackening in the speed of the train might have enabled the buggy to clear the track. There was proof of the rate of speed of the train, and also of the rate the intestate’s vehicle was going just before and at the time of the collision, and, notwithstanding the engineer did not discover the intestate’s buggy in time to bring the train to a stop before reaching the crossing, the jury could infer that he did so in time to slacken or check the speed of same, so as to enable the buggy to clear the track before the train reached the crossing. The delay of a second or two on the part of the train in reaching the crossing might have enabled the buggy to clear the track before being struck. There being proof from which the jury could infer subsequent negligence as the proximate cause of the iutestate’s death, the defendant was not entitled to the general charge as to count 1, notwithstanding the intestate may have been guilty of contributory negligence in going upon the track. Count 2 charges subsequent negligence, and there was proof sufficient to take it to the jury, and the trial court did not err in refusing the generál charge as to said count 2. Of course, there should be a correct hypothesis for hypothetical questions, and whether or not they existed in the examination of Robinson or were subsequently supplied by the defendant’s evidence, so as to prevent reversible error, we need not decide, as the [603] cause must be reversed for other reasons, and the questions on the next trial can conform to the rule. •The judgment of the circuit court is. reversed, and tions on the next trial can conform to the rule. Reversed and remanded. Simpson, Sayre, and Somerville, JJ., concur.