Brown & Flowers v. Central of Georgia Ry. Co.

72 So. 366, 197 Ala. 71, 1916 Ala. LEXIS 28

Opinion

THOMAS, J.

This court on former appeal held that under the evidence the inference of subsequent negligence was for the jury. — Brown & Flowers v. C. of Ga. Ry. Co., 185 Ala. 659, 64 South. 581. The affirmative charge requested by defendant was properly refused on this trial. Both trials were had on counts 3 and 4, added by way_ of amendment, and in these counts there was no allegation of wanton, willful, or intentional wrong.

(1) Under a complainant charging negligence generally, the plaintiff may recover on proof of negligence subsequent to the actual discovery of persons in a place of danger on or near the track. — L. & N. R. R. Co. v. Lowe, 158 Ala. 391, 48 South. 99; Brown & Flowers v. C. of G. Ry. Co., supra; C. of G. Ry. Co. v. Foshee, 125 Ala. 199, 217, 27 South. 1006).

(2) Charge 1, requested by the defendant, was properly given, under the issues and the evidence presented by this appeal. — South. Ry. Co. v. Stewart, 179 Ala. 304, 307, 69 South. 927; Brown & Flowers v. C. of Ga. Ry. Co., supra; Ala., etc., Ry. Co. v. Godfrey, 156 Ala. 202, 47 South. 185; S. & W. R. R. Co. v. Meadors, 95 Ala. 137, 10 South. 141. A railroad company owes to a trespasser no duty, except the exercise of reasonable care and diligence to avoid injuring him, as soon as his peril becomes apparent. — South. Ry. Co. v. Stewart, supra; Haley v. K. C., M. & B. R. R. Co., 113 Ala. 640, 21 South. 357; Brown & Flowers v. C. of Ga. Ry. Co., supra.

(3) Defendant’s agent in charge of the engine must have actual knowledge of the perilous situation. No error was committed in giving defendant’s written charge No. 4. — Glass v. M. & C. R. R. Co., 94 Ala. 588, 10 South. 215; Ga. Pac. Co. v. Lee, 92 Ala. 262, 271, 9 South. 230; So. Ry. Co. v. Stewart, supra; L. & N. R. R. Co. v Abernathy, 192 Ala 629, 69 South 59

(4) Defendant’s given charges 2 and 5 were to the effect that after the discovery of the position of peril of plaintiff’s driver and team on or near the railroad track, by the deefndant’s agent in charge of the engine, defendant owed the plaintiff and the driver no higher duty than to use ordinary care and caution to avoid injuring them These charges were not in accord with the authority of this court, requiring that, after the discovery of such peril by the defendant’s agents, the defendant must use all means and appliances, known to prudent and skillful engineers, to avoid injury. — L. & N. R. R. Co. v. Young, 153 Ala. 232, 45 South. 238, 6 L. R. A. (N. S.) 301; Randle v. B. R. L. & P. Co., 158 Ala. 532, 48 South. 114; Brown v. St. L. & S. F. R. R. Co, 171 Ala. 311, 55 South. 107; L. & N. R. R. Co. v. Abernathy, supra, 69 South. 57.

In Brown & Flowers v. C. of Ga. Ry. Co., supra, this court said that: “Being a trespasser in taking the team to that place,” assuming the dangerous character of the driveway, and knowledge thereof by both defendant’s agent and plaintiff’s agent, then plaintiff’s agent “was guilty of initial contributory negligence, which conclusively answered the simple initial negligence charged in the complaint, thus leaving upon defendant no duty except to use diligence in the avoidance of injury after the danger was actually known to its agent, and upon plaintiffs the burden of proving defendant’s failure therein.”

“Diligence” is defined in Grant v. Moseley, Adm’r, 29 Ala. 302, by Judge Stone, as follows: “ ‘Diligence,’ when the law imposes it as a duty, implies that ‘we shall do those things we ought to do, and leave undone those things we ought not to do.’ It requires action, as well as forbearance to act.” — Randle v. B. R. L. & P. Co., 169 Ala. 314, 324, 53 South. 918.

(5) “Diligence” is a relative term, and what is due diligence must be determined by the circumstances of each case. — The Farmer v. McCraw, 26 Ala. 203, 72 Am. Dec. 718; Carter v. Chambers, 79 Ala. 223; Prince v. Ala. State Fair, 106 Ala. 340, 17 South. 449, 28 L. R. A. 716; Walker v. Ala. T. & N. Ry., 194 Ala. 360, 70 South. 125, 127; Eichel v. Sawyer (C. C.) 44 Fed. 845; Brand v. Sch. & T. R. Co., 8 Barb. (N. Y.) 368; Lee v. C. R. I. & P. R. Co., 80 Iowa, 172, 45 N. W. 739; Ennis v. Eden Co., 65 N. J. Law, 577, 48 Atl. 610; Davis v. C., N. W. R. Co., 58 Wis. 646, 17 N. W. 406, 46 Am. Rep. 667; Isabel v. H. & St. J. R. Co., 60 Mo. 475; Nord-Deutscher Lloyd v. In. Co., 110 Fed. 420, 49 C. C. A. 1; Heintz v. Cooper, 104 Cal. 668, 38 Pac. 511; Rue v. Quinn, 137 Cal. 651, 66 Pac. 216, 70 Pac. 732.

* Judge Stone declared that, in fixing the degree of diligence required of engineers in charge of trains, “ordinary diligence does not meet the reasonable requirements of such travel and transportation.” — Tanner, Ex’r, v. L. & N. R. R. Co., 60 Ala. 621, 643. The measure of such duty is variously expressed as follows: “Due care,” “reasonable care,” and diligence to avoid injury’ (Walker v. Ala. T. & N. Co., supra; South. Ry. Co. v. Stewart, supra; Bentley v. Ga. Pac. Ry. Co., 86 Ala. 485, 6 South. 37; Cent. R. & B. Co. v. Vaughan, 93 Ala. 209, 9 South. 468, 30 Am. St. Rep. 50; Haley v. K. C., M. & B. R. R. Co., 113 Ala. 640, 649, 21 South. 357; Randle v. B. R. L. & P. Co., 158 Ala. 532, 48 South. 114); reasonable care (Weatherly v. N. C. & St. L. Ry., 166 Ala. 575, 51 South. 959; Tanner’s Case, 60 Ala. 621); due care and reasonable diligence (B. S. R. R. Co. v. Kendrick, 155 Ala. 352, 46 South. 588) ; the use of “every reasonable means” and the employment of “every reasonable agency” to “avert the catastrophe” (Pannell, Adm’x, v. N. F. & S. R. R. Co., 97 Ala. 298, 12 South. 236); the doing of no act, the omission of nothing the doing or omission of which would tend to inflict injury (Glass v. M. & C. R. R. Co., 94 Ala. 581, 10 South. 215; South. Ry. Co. v. Bush, 122 Ala. 470, 26 South. 168).

It follows that, for the error of the trial court in giving at defendant’s request written charges 2 and 5, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.