Billingsley v. Nashville, Chattanooga & St. Louis Railway

ANDERSON, J. While there was a conflict in the evidence as to whether or not the plaintiff was injured in the collision, yet, if he was injured, it was at a crossing, as covered by section 5474 of the Code of 1907, and section 5476 places the burden on the defendant of acquitting itself of negligence when an injury is inflicted at the place in question.—So. R. R. Co. v. Smith, 163 Ala. 186, 50 South. 390; N. C. & St. L. Ry. Co. v. Wallace, 164 Ala. 216, 51 South. 371; Carlisle v. A. G. S. R. R. Co., 166 Ala. 598, 52 South. 341; Weatherly v. N. C. & St. L. Ry. Co., 166 Ala. 584, 51 South. 959. The trial court in the oral charge, as well as by giving certain special charges, misplaced the burden of proof by requiring the plaintiff to show negligence on the part of the defendant. When the plaintiff proved an injury at the place in question, as a result of the collision, he made out a prima facie case, and the burden was on the defendant to show a compliance with the statutory requirements and to acquit itself of negligence. [347] The trial court, in the oral charge as well as by refusing charges 73, 75, and'77, seems to have applied the Henry Case, 139 Ala. 161, 34 South. 389, by requiring proof of Avantonness on the part of the defendant as distinguished from its agents or servants in charge of the train and Avhile acting in the line or scope of authority. The Avanton count in the case at bar is unlike the count in the Henry Case, supra, Avhich charged a corporate trespass. Count 2 does not charge a corporate act or a trespass, but charges willful or Avanton conduct on the part of defendant’s servants or agents Avhile acting AAdthin the line or scope of their employment. The statute (section 5474 of the Code) not only requires trains to come to a full stop Avithin 100 feet of the crossing, but also provides that they must not proceed until the trainmen “knoAv” that the way is clear. The defendant’s servants Avere charged AAdth the highest degree of diligence to ascertain that the Avay Avas clear, and Avould remain so a sufficient length of time to allow their train to pass the crossing in safety.—So. Ry. Co. v. Bryan, 125 Ala. 310, 28 South. 445; So. Ry Co. v. Bonner, 141 Ala. 529, 37 South. 702. The trainmen on one road, hoAvever, who have complied Avith the statute in approaching a crossing, may assume that the trainmen on the intersecting road AAdll also .comply therewith, unless the .circumstances indicated that the other train Avould not stop.—R. & D. R. R. Co. v. Greenwood, 99 Ala. 501, 14 South. 495; Birmingham R. R. Co. v. Jacobs, 101 Ala. 149, 13 South. 408. Charges 35 and 66 given for the defendant should have been refused, as they pretermit the fact that the circumstances did not indicate that the other train could or Avould stop. In fact, it Avas stated in the Greemoood Case, supra, that an oral charge [348] similar to these charges was made good because coupled with the further declaration, that this presumption did not arise if the circumstances indicated that the other train would not stop. Charge 69, given for the defendant, should have been refused also, for while it contains the vital proviso omitted from charges 35 and 66, it pretermits the assertion that the defendant had complied with the statute and which was a prerequisite to the right to indulge in the assumption that the other train would comply with the statute. This presumption arises only in favor of those who are not themselves at fault. —L. & N. R. R. Co. v. Mosby, 125 Ala. 341, 28 South. 43. There was no error in permitting the defendant to prove that the plaintiff was cursing and swearing in the presence of ladies immediately after the accident. There was a conflict in the evidence as to whether or not the plaintiff was intoxicated at the time, and his conduct Avas an element to be considered by the jury in determining whether or not he was intoxicated at the time; and, if he was intoxicated, this fact would be a circumstance to be considered by the jury in weighing his evidence and in passing upon the accuracy of his statement and recollection as to what happened at the time of the accident. The trial court should have sustained the motion to exclude-the statement by the witness Tucker, “He had plenty of time to stop it before it got to us.” It Avas not responsive to the question. Moreover, the Avitness did not qualify as an electric car expert. The judgment of the city court is reversed, and the cause is remanded. Reversed and remanded. All the Justices concur, except Dowdell, C. J., not sitting.