This is an appeal by plaintiff from judgment for defendant in action for personal injury to plaintiff and damage to his automobile which occurred, in the nighttime, when plaintiff's automobile and defendant's train collided at Oxmoor Crossing in Jefferson County where defendant's railroad crosses a public highway.
The case was tried on amended Count I and Count A. In amended Count I, plaintiff alleges that defendant "did negligently operate a train in such a manner as to cause plaintiff to fall upon said crossing and his body (sic) twisted and injured and defendant negligently ran said train into plaintiff's automobile . . ." In Count A, plaintiff alleges that "defendant wantonly injured and damaged the Plaintiff by wantonly running said passenger train across said crossing. . . ."
We are of opinion that there is no evidence to support the allegation that defendant wantonly injured plaintiff. Plaintiff does not appear to insist that there is such evidence. Further consideration of Count A is pretermitted.
Defendant pleaded in short by consent with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of the action, with leave to plaintiff to give in evidence like matter in reply.
Plaintiff rested and the court gave to the jury defendant's requested Charge 2 which recites:
Giving Charge 2 is assigned as error.
There are three parallel tracks at Oxmoor Crossing. The highway crosses the tracks at right angles. In approaching the railroad, plaintiff reached first the track known as the southbound main line. Trains travel on that track from plaintiff's left to his right. The second or middle track is a switching track used for switching and car storage. The third track is known as the northbound main line, on which trains travel from plaintiff's right to his left. The collision occurred on the northbound main line.
The road on which plaintiff approached the crossing curves downhill to the right and levels out. On the side of the highway, on plaintiff's right, in the vicinity of the crossing, stands a concrete wall about twelve feet high. Between the wall and the highway there is a small station house which, plaintiff testified, is twelve feet from the southbound main line and appears to be approximately the same distance to the right of the highway. The significance of wall and station house, plaintiff contends, is that they blocked plaintiff's view to the right down the tracks in the direction from which trains on the northbound main line approached the crossing.
Plaintiff contends that his view to the right was further blocked by a string of railroad cars standing on the middle track. As we understand Tollett's testimony, he said that the first car on the center track was standing "about a railroad car length" from the crossing. Plaintiff testified that his best judgment of the distance, from the roadway to the beginning of the string of cars on the middle track, was 45 or 50 feet. Plaintiff testified:
Plaintiff is 50 years old. He testified that he was familiar with "this area" for thirty years; that he had had occasion, in the days and weeks just before the collision, to cross Oxmoor Crossing at the same general time of day; that he had observed the northbound train of that time of the evening many times and knew approximately what time it did run if it was not late.
As we understand the evidence, there is testimony by the plaintiff himself which would justify a finding by the jury that plaintiff did not stop, look, and listen before driving his automobile onto the northbound main line where the train struck the car, and the further finding that plaintiff's failure to stop was the proximate cause, or at least a proximate cause contributing to his injury and damage.
On the other hand, plaintiff also testified that, as he approached the crossing, he had "to pass the house and wall" before he could see down the track to his right; that he was aware "that this was a main line on this side of the crossing"; that when he got to the crossing he stopped and listened; that he looked both ways but saw no light; that he observed nothing on the southbound track; that he then started on across; that he observed the cars standing on the middle track as already mentioned; that when he stopped for the first track, he could not, because of the standing cars, see down the northbound main to his right; that he stopped a second time "Before I got into the other track"; that when he stopped there, he looked and listened; that on the right-hand side of his car "a glass was broke out"; that there was no noise or racket to interfere with his listening and his radio was broken; that he had good hearing; that he heard no "Diesel horn" blowing "until it was right on me." Plaintiff testified further:
We have outlined plaintiff's testimony tending to show that he did stop, look, and listen before driving onto the northbound main track. As already noted, plaintiff gave further testimony on cross-examination as follows:
Thus there was conflict in plaintiff's testimony as to whether he first saw the headlight on the engine after or before he drove the car onto the northbound main track.
In considering the correctness of refusing affirmative instructions, this court has said:
Where several railroad tracks lie alongside or immediately adjacent, a traveler about to cross the same may be said, generally, to have exercised due care and prudence if he stopped, looked, and listened before he ventured upon the first track, and is not required, as matter of law, to repeat the precaution of stopping, looking, and listening at each of the said tracks in succession. No hard and fast rule can be laid down as to the duty to stop, look, and listen after entering upon the first of several parallel or immediately adjacent tracks. It is usually held to be a question of fact for the jury whether, under all the circumstances of the particular case, the plaintiff is guilty of contributory negligence, in passing across the several or subsequent tracks, without again stopping to look and listen, where such plaintiff had taken the initial precaution to stop, look and listen immediately or reasonably near to or before coming to or on the first track. Cunningham Hardware Co. v. Louisville & N. R. Co., 209 Ala. 327, 96 So. 358, and authorities there cited.
The instant plaintiff testified that he stopped, looked, and listened before going on the first track. Whether he again stopped, looked, and listened, as a reasonable man would have done, before going into a zone of danger on the third track, was, as it seems to us, under all the circumstances of this case, a question of fact for the jury. We do not think that the evidence shows that plaintiff was, as a matter of law, guilty of contributory negligence.
The evidence is that the train whistle blew only twice, which was shortly before the collision. As we understand the evidence, there is no testimony that the bell was ringing at all. § 170, Title 48, Code 1940, provides:
§ 173, Title 48, Code 1940, recites:
"A railroad company is liable for all damages done to persons, or to stock or other property, resulting from a failure
In reversing a judgment where the affirmative charge was given for defendant, on the second count for negligence, this court said:
So, in the instant case, defendant did not carry the burden of showing compliance with § 170, supra, and the jury could find defendant guilty of initial negligence in failing to blow whistle or ring bell one-fourth mile before train reached the crossing and to continue to do so as the train approached the crossing. We are of opinion that the question was for the jury whether defendant's initial negligence was the proximate cause of plaintiff's damages.
Defendant argues that "all of plaintiff's damages resulted from the stalling of his automobile on the crossing," and that this case falls under the rule of Southern Ry. Co. v. Hale, 222 Ala. 489, 133 So. 8, and Louisville & Nashville R. Co. v. Griffin, 240 Ala. 213, 198 So. 345. Both of these cases involved a vehicle stalled on a crossing. We think both cases can and should be distinguished from the case at bar.
In the Hale case, "the evidence is without dispute that plaintiff drove upon the track without stopping, looking, and listening, and his contributory negligence therefore would bar any recovery rested upon defendant's initial negligence . . . ." In the case at bar, as we have undertaken to show, the evidence of plaintiff's contributory negligence is not without dispute, and if, he is not guilty of contributory negligence, it would not bar recovery for defendant's initial negligence. This difference between the two cases makes the rule of the Hale case inapplicable in this respect
In the Griffin case, "Defendant was absolved of all simple negligence by the testimony of the plaintiff that the whistle on the locomotive was blown for the crossing," and:
Thus, in Griffin, no breach of duty by defendant was shown, and the holding is that the trial court erred in refusing the affirmative charge for defendant. In the case at bar, we have indicated that the evidence will support a finding that defendant was guilty of initial negligence. This difference distinguishes Griffin from the instant case.
Plaintiff insists that the jury could find defendant guilty of subsequent negligence.
Plaintiff argues that the court erred in sustaining objection to admitting in evidence four photographs marked plaintiff's Exhibits 14, 16, 21, and 22. The court admitted eighteen other photographs, offered by plaintiff, depicting the crossing and adjacent territory. These eighteen exhibits are before us and appear to present an adequate and clear picture of the scene. Exhibit 14 appears to show a wall or embankment. We do not understand its relevancy. Exhibit 16 appears to show the concrete wall near the station house and crossing. This wall appears to be shown by plaintiff's Exhibits 13 and 15 which were admitted in evidence. Exhibit 16 sheds no additional light on the issues. Exhibits 21 and 22 show simply one rail of track with a stick or ruler lying across the rail. We are of opinion that the excluded pictures shed no additional light on the issues in the case and that refusing to admit them was without injury to plaintiff.
For error in giving the affirmative charge for defendant, the judgment is reversed and the cause remanded.
Reversed and remanded.
All the Justices concur.
Defendant says: "We do not understand the Cunningham [Cunningham Hardware Co. v. Louisville & N. R. Co., 209 Ala. 327, 96 So. 358] case . . . to stand for the proposition for which it was cited by this Court. In the Cunningham case, the plaintiff was induced to start across the multiple tracks by a flagman who (according to plaintiff's testimony) had waved him across,. . . ." We take defendant's argument to be that the general rule stated in Cunningham, and repeated in our opinion in the instant case, has no application to crossings where a flagman, or other invitation to one crossing a crossing, is not present.
We are of opinion that the rule is not limited to cases where a flagman gave a signal to the injured party and induced him to start across the tracks. The following cases; Georgia Pacific R. Co. v. Lee, 92 Ala. 262, 9 So. 230; Louisville & Nashville R. R. Co. v. Bryant, 141 Ala. 292, 37 So. 370; and Louisville & Nashville R. R. Co. v. Loyd, 186 Ala. 119, 65 So. 153; are cited in Cunningham in support of the general rule to which we refer. As we read the opinions in the three cases last cited, no flagman was present at the crossing in any one of the three cases. At the report of Cherry v. Louisiana & Ark. R. Co., 121 La. 471, 46 So. 596, 17 L.R.A.,N.S., 505, also cited in Cunningham, cases from other states may be found.
In the Lee case, supra, the street was occupied by three tracks of defendant's railroad. We quote part of what the court said with respect to plaintiff's duty, to wit:
"Another phase of the evidence goes to show that plaintiff's driver stopped the wagon just before turning into the crossing, and when within twenty-five or thirty feet of the intersection of the main track and the road along which he was travelling, for the purpose we have stated, and, remaining stationary at that point for some moments—minutes perhaps—listened the while for moving cars, but did not look along the main track because of the intervening box cars to which we have referred; and, hearing nothing to indicate peril in the attempt to pass over, he drove upon the crossing and came in collision with the train. On this aspect of the evidence, if the driver did stop, and listen so near to the main track at the point of its crossing the road as to
In the Bryant case, supra, the crossing was across four or five tracks. The opinion recites in part:
In the Loyd case, supra, there were three tracks, i. e., two side tracks and a main track. This court said:
The three last cited cases, we think, support the general rule as to multiple track crossings, even where flagman or other invitation is absent.
Appellee indicates concern ". . . over what appears to be an abandonment by this Court of the long standing rule that one who passes over a railroad crossing is under the continuing duty to stop, look and listen, if necessary, more than one time."
We do not intend to abandon any rule. Certainly, one crossing railroad tracks is under a duty to exercise reasonable care, and it may be that he is under
In the Willingham case, the majority limited concurrence in granting certiorari to the ground of giving an erroneous charge, and, in the companion case of Sloss-Sheffield Steel & Iron Co. v. Peinhardt, 240 Ala. 207, 212, 199 So. 33, 37, the majority of the court were:
In Willingham, the Court of Appeals noted that:
Most of defendant's special pleas were that plaintiff negligently failed to stop, look and listen. Plaintiff testified: "that he did not know that defendant's railroad crossed said street at the point where the collision occurred." (29 Ala.App. at page 576, 199 So. at page 21) We understand, in Willingham, that plaintiff, being unaware of location of the railroad crossing, did not stop, look, or listen at all, yet the court held his contributory negligence to be a question for the jury.
In Atlantic Coast Line R. Co. v. Flowers, 241 Ala. 446, 3 So.2d 21, this court responded to argument wherein Cunningham was relied on. This court, referring to Cunningham and plaintiff's duty, said: "There are some situations illustrated there which are said to make the duty an issue for the jury." 241 Ala. 452, 3 So.2d 25. This court also said: "The facts here are different from those in the Peinhardt and Willingham cases, supra, in respect to the very incidents which in one instance takes the issue from the jury and in the other makes it a jury question." (Emphasis Supplied.) 241 Ala. 452, 3 So.2d 25.
Thus the correct rule seems to be that under certain facts, plaintiff's failure to stop, look, and listen at the proper time and place may be contributory negligence as a matter of law, while under other facts, plaintiff's failure to stop, etc., may not be, as a matter of law, contributory negligence, but may be, on that issue, a question for the jury.
On original deliverance, we decided that, under the facts here, the issue of plaintiff's contributory negligence presented a question for the jury.
In the instant case, there is testimony that plaintiff not only stopped before entering the crossing, but that he also stopped again after he had crossed at least one of the tracks. Defendant contends that plaintiff is guilty of contributory negligence, as a matter of law, because his second stop
We quote once more from plaintiff's testimony:
If plaintiff's second stop was at a point ". . . up there where that middle track is so" . . . (he) "could see around them cars," then the jury must say whether he was guilty of contributory negligence.
Defendant argues that we cannot review the giving of affirmative charge because all the evidence that was before the trial court is not before us, citing, inter alia, Bates v. Louisville & Nashville R. Co., 21 Ala.App. 176, 106 So. 394. Defendant says that the transcript discloses that the jury had before them a diagram on a blackboard, that the witnesses testified with reference to the diagram, that without it we cannot understand the testimony, and that, although the blackboard was not introduced into evidence, we cannot review the giving of the affirmative charge without having the blackboard before us.
We have before us what purports to be a photostat or photograph of a blackboard diagram bearing the separate certificate of the clerk of the trial court and by him "attached as part of the transcript" in the instant case. This picture seems adequate to meet the objection urged by defendant. As to whether we could review the giving of the affirmative charge without this picture, see Byars v. Howell, 209 Ala. 191, 95 So. 871.
All the Justices concur.