Birmingham Railway & Electric Co. v. City Stable Co.

119 Ala. 615

Opinion

BRICKELL, C. J.

Appellee sued to recover damages for injuries to a horse and buggy owned by it, caused by their being struck by an electric car operated by appellant while they were in the care of one Pritchard who had hired them. The demurrer to the complaint on the ground that it failed to aver the name of the motorman in charge of the car ivas properly overruled. There is no rule of pleading that requires a complaint in an action against a railroad company to recover damages fur 'injuries to one not an employe, to state the name of the person whose negligence is alleged to have caused the injury. It lias been held that a complaint by an employe under section 1749, subdiv. 2, .Code 1896, counting on the negligence of any person in the service of the employer who has any superintendence intrusted to him, or xinder subdiv. 5 of the same section, counting on ihe negligence of any person in the service of the employer in charge or control of any signal, point, locomotive, etc., must allege the name of such person, or that his name is unknoivn to plaintiff. — Southern Ry. Co. v. Cunningham, 112 Ala. 496; L. & N. R. R. Co. v. Bouldin, 110 Ala. 185. But in McNamara v. Logan, 100 Ala 187, followed by and adhered to in Woodward Iron Co. v. Herndon, 114 Ala. 215, which overruled a conflicting decision in L. & N. R. R. Co. v. Bouldin, supra, it was held that the above rule did not apply to a complaint under subdivision 1 of this section, counting on a defect in the ways, works, machinery, etc., for the reason that the injured employe could not be supposed to know the name of the person charged with the duty of keeping the ways, works and machinery in proper condition. For a like reason the rule is inapplicable when the injury is sustained by one who is not an employe of the defendant.

The accident occurred at the intersection of Thirty-third street and Avenue F., along which avenue the electric railway runs from Birmingham to Avondale. Thirty-third street is one block beyond and east of the corporate limits of Birmingham, and Avenue F. is a continuation of Avenue F. in Birmingham. Defendant had a station at this point, and there were seven or eight houses on the east side of Thirty-third street south of the railroad, and five or six on the south side of Avenue F., in the immediate vicinity of the place where the accident occurred, but there were no houses on the north side of the avenue, except a store about half a block from the place. On the north side of the track there had been a wash-out which left a hole extending from the track to the north side of the avenue from three to four feet in depth, sloping gradually from the track, but leaving on the north side a perpendicular embankment three or four feet in height over which it was impracticable to drive ahorse. It Avas practicable, however, to drive across the track into the wash-oul, and to emerge therefrom by driving along the avenue parallel Avith the track a short distance. Pritchard was driving at night north along Thirty-third street, and attempted to cross the track at this place. While on the track the horse stopped and refused to cross over. Pritchard alighted and attempted for two or three minutes before the car appeared to pull the horse across the track but failed, and the car approaching from Birmingham struck the horse and knocked it from the track. The testimony showed Avithout conflict that Avhen the car reached TAventy-seventh street going east, the motorman turned on the full current and let the car run doAArn grade at full speed, Arariously estimated by the AAdtnesses at from 12 to 25 miles an hour. Just before reaching Thirty-third street the track makes a short curve, and when the car turned the curve it Avas running at so great a speed that it Avas impossible for .the motorman to stop it within the distance at AA’liich the horse could be seen, about seventy feet, or Avithin the distance its head-light illuminated the track.

The horse being in the custody of Pritchard, the same principles must apply Avith respect to the duty OAving by defendant, as applies in the case of a human being-on a railroad track. If his act in driving on the track Avas that of a trespasser, those in charge of the car OAved him no duty except to exercise due care to avoid the injury after the presence of the horse on the track became known to them. But if he had a right to drive on the track for the purpose of crossing it at this particular place, then it became their duty not only to keep a lookout to observe him, but also to run the car at such a rate of speed on approaching the place, and to retain such control over it, as to be able to bring it to a full stop before striking the horse.- — Glass v. M. & C. R. Co., 94 Ala. 581; Nave v. A. G. S. R. Co., 96 Ala. 264; Central R. Co. v. Vaughn, 93 Ala. 209. As was stated in Glass v. M. & C. R. Co., supra, it is not negligence in itself for one to cross over a, railroad track wherever he may have occasion to do so, whether in the open country or Avithin the limits of a toAvn or village, and one who, for the purpose of crossing the track, goes upon it with care and caution and with all the assurance his senses properly exercised can give him, that it is safe to do so, may recover if he is injured from some cause against which he could not guard. He is not, under such circumstances, a trespasser, and the railroad company OAves to him, while in the act of crossing, the samfe duty it owes to one Avho has a right to be on the track. This is particularly true under the facts of this case. Avenue F. at the place of the accident, being one block from the city limits and having houses built on each side thereof, was undoubtedly a public thoroughfare. The public had the right to use both si les of the street and to cross the track at any suitable point for the purpose of getting from one side to the other, and it Avas the duty of those in charge of the cars of defendant to retain such control over the cars on approaching this place as to be able to bring them to a full stop before striking one in the act of crossing the track. This duty was not suspended by the mere fact that a wash-out had occurred on the north side of the trade. It does not appear hoAV long the wash-out had existed. It may have been of recent origin, in which case the defendant was certainly not relieved from the duty of exercising the same care to avoid injuring persons driving along Thirty-third street and crossing the trade that it OAved before the wash-out occurred. We are of the opinion the uncontradicted evidence shows that defendant Avas guilty of negligence in running the car at so great a rate of speed as to be unable to avoid injury to one in the act of crossing the track at this point. Whether Pritchard was guilty of negligence, in the particulars alleged in the special pleas, which contributed proximately to the injury, was properly submitted to the jury. The only particulars in which he is charged with such contributory negligence are, first, in driving upon the track immediately in front of the car; second, in allowing the horse and buggy to remain on the track on a curve; third, in allowing the horse and buggy to stand on the track at a point where they could not be seen by the motorman until it was too late to avoid the injury. The evidence does not sustain the plea in the first particular, since it shows that Pritchard was on the track trying to pull the horse across two» or three minutes before the car came within sight. Assuming that his failing to attempt to back the horse off the track was equivalent to permitting it to remain on the track, as charged in the plea, it was for the jury to determine, under all the circumstances, whether this failure contributed to the injury. In view of these averments of the plea of contributory negligence, charges 3, 4 and 5, requested by appellant, were properly refused because, besides assuming that Pritchard had knowledge of a safer crossing, they predicate defendant’s right to a verdict upon his negligence in selecting the more dangerous of two crossing places, which act of contributory negligence is not charged in the pleas. Charge 6 was erroneous and properly refused because it assumes that an effort to back the horse off the track would have been successful, and that the failure to make such effort contributed to the injury. The other charges requested by appellant were properly refused for reasons already stated. We discover no error prejudicial to appellant in those parts of the court’s oral charge to which exceptions were reserved. The judgment of the court below is affirmed.