Southern Railway Co. v. Irvin

McCLELLAN, J. This is an action for damages, against the appellant and its engineer, for wrongfully causing the death of plaintiff’s (appellee’s) intestate, G. O. Greer. The evidence in the case shows, without conflict, that intestate was killed by a train of the defendant (appellant) between 6:30 and 7 a. m. of the morning of August 9, 1913; that he .was not seen, approaching or upon the track, by either of the defendant’s employees on the engine until the rapidly moving train ivas so close to Greer that no human power could have averted the fatal impact; and that the tragedy occurred at a path crossing of the railway, which was used, at the most, by from 175 to 200 people a day. From the hour of the day and season it must have been good daylight at the time of the occurrence. The only error assigned and urged on this review is based upon the refusal to the defendant of the general affirmative charge; and this on the theory that the intestate was guilty of proximately contributory negligence, barring a recovery for his death, in thrusting himself within the dangerous sweep of the engine. (1) Unless excused from stopping, looking, and listening by reason of some circumstance that would have rendered the taking of those precautions before going dangerously near to or upon a railway track entirely — 624 — vain for the purpose the law intends in their exaction (Central of Georgia Ry. Co. v. Hyatt, 151 Ala. 355, 43 South. 867, and others in its line), it is the duty of the person intending to eross a railway to stop, look, and listen for approaching trains; and this use of the senses - must be made within such nearness to the track and under such circumstances as will afford the highly important information to the traveler and operate as the precatution the most ordinary prudence, in such circumstances, suggests; and the duty, unless excused as indicated, Is continuing at least to the extent of excluding the injection of an element of danger into the situation between the time he last stopped, looked, and listened and the time he enters the zone of danger a moving train would create. — Central of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 27 South. 1006; Bason v. A. G. H. R. R. Co., 179. Ala. 299, 60 South. 922; Central of (Ga. Ry. Co. v. Barnett, 151 Ala. 407, 44 South. 392. (:2, 3) There can be no doubt, under the evidence in this record, that, had Greer observed the duty of precaution the law laid on him, he would not have so exposed himself as to be stricken by the train that took his life. His companion, who was walking a few feet .ahead ¡of him, testifies that they stopped and looked and listened, and no Information of the approaching train mas afforded them. This act of stopping was ten feet from the' track. If they looked for trains, as he testifies, and if their view ivas not obstructed by “grass or bushes,” then the denial that no train was observable-must, be and is set down with the impossible, according to the self-evident good reasoning and sound holding of this court in Peters v. Sou. Ry. Co., 135 Ala. 533, 33 South. 332. ■ On the other hand, was their view, if attempted to be taken .¡at ¡all, ¡so obstructed by grass or bushes or ’ — 625 — both as to excuse the observance of the precautionary duty the law prescribes? We find no evidence to that effect in this record. Greer’s companion does testify to the presence of grass and bushes about the path and near to the railway; but he does not undertake to say that at no point along the path, within a reasonable distance of the railway at the place of their intended crossing, was there a place wherefrom the legal duty of precaution might have been observed and danger avoided. Indeed, as we understand his testimony in this regard, it carries the affirmative implication, if not the positive statement, that there were such points along the path and free from danger of a moving train as that, if looked from, .a considerable distance up the track, in the direction from which this train was coming, was open to view. The intestate is shown to have had good eyesight. It was daytime. It was at a place familiar to him. His companion says he remarked to Greer (when they) had stopped about ten feet from the track), “You reckon that passenger train has done gone,” referring to the regular train which in a short time struck him. The conclusion is unescapable, on this record, that if he had looked, as he might have done and as duty required before becoming endangered, he would not have lost his life. (4) It is suggested in brief for appellee that the railway company alone prosecutes this appeal, and that the pertinent provisions of the Acts of 1911, p. 589, were not complied with in respect of notice or summons to the company’s codefendant in the judgment. The judgment appears to be against both defendants. Had appellee taken the objection by proper motion, seasonably made, the question raised in the brief would have been raised for consideration here. No motion to that end — 626 — was made and submitted in this court. — Walsh v. Hill, 169 Ala. 410, 53 South. 746. The affirmative charge was erroneously refused the defendant. The judgment is reversed and the cause is remanded. Reversed and remanded. Anderson, C. J., and Sayre and Gardner, JJ., concur.