Central of Ga. Ry. Co. v. Chambers

62 So. 724, 183 Ala. 155, 1912 Ala. LEXIS 339

• Court: Supreme Court of Alabama
• Decided: May 13, 1912
• Status: Published

Opinion

SAYRE, J.

— The demurrers addressed severally and separately to each count of the complaint took objections, the language of which would lead to a classification as follows: (1) That on the facts alleged plaintiff was a trespasser to whom defendant owed no duty; (2) that plaintiff on his own statement of his case was guilty of contributory negligence.

Without affirming the sufficiency of the averments of the several counts in all respects, we state our conclusion that, as for any specific objection taken by the demurrer, the ruling as to each of them was free from error. To state briefly the substance of the complaint, it was that defendant, having allowed its train to stand across and obstruct a public road crosssing in the village of Hatchechubbee for an unreasonable time, plaintiff, who was under 14 years of age, undertook to proceed along the public road by climbing over the coupling between the cars, whereupon defendant negligently moved its train, causing the bodily injuries of which plaintiff complains. In most of the counts the allegation in respect to the movement of the train, at the moment of plaintiff’s injury, was that it was moved without blowing the whistle or ringing the bell or giving other warning; but, in view of.the great generality of averment permitted by our system of pleading in such cases, all the counts may, for the purpose of passing upon the assigned grounds of demurrer, be taken as substantial equivalents.

Noting that there is no allegation that defendant’s employees were aware of plaintiff’s position in a place of danger, and hence that no question arises as to the liability of the defendant in such case, defendant’s first contention, though variously stated, raises the question whether, under the circumstances, due care required defendant to take precaution against the possibility that some one might be in a position which would be rendered dangerous by the movement of its train without warning.

The language and common sense of the statute, which requires the engineer or other person having control of the running of a locomotive on any railroad to ring the bell and blow the whistle before reaching any public road crossing or stopping place, or while moving within the limits of any village, town, or city (Code, § 5473), shows that it was designed for the protection of persons who may at such places reasonably be expected to be upon the track in front of an approaching train. The additional purpose of warning passengers of the movement of trains is served by that part of the statute which requires the engineer to blow the whistle or ring the bell immediately before and at the,, time of leaving a station or stopping place. It was not intended for the benefit of persons who may undertake to pass between the cars or go upon the train without the privity, express or implied, of those responsible for its operation. The only duty owed to such persons is to use due care for their safety after it is discovered that they are in a position of danger. — Carlisle v. A. G. S., 166 Ala. 597, 52 South. 341; McElvane v. Central of Georgia, 170 Ala. 525, 54 South. 489, 34 L. R. A. (N. S.) 715.

But we think the duty to give warning of some efficient sort arose in the circumstances of plaintiff’s case out of the ordinary principles of due care, apart from the statute, though perhaps for practical purposes an application of the statute would serve as well. Where a public road and the line of a railroad intersect, neither the railroad company nor the public have any exclusive right of occupation. “Subject to- the duty oí being diligent in avoidance of probable danger (a duty which as between them is reciprocal), the public has the right to use the whole of the highway and the railroad company has the privilege of operating its trains.” — So. Ry. v. Crenshaw, 136 Ala. 573, 34 South. 913. A railroad company may allow its train to stand across a public highway for such length of time as is necessary to the transaction of its business in a reasonable manner and with diligence. And the danger of a passage through, over, or under a train coupled up and ready for movement, though such passage be possible for the pedestrian, is so obvious, and the inconvenience to both the railroad company and the pedestrian so great, that the right of the former to occupy the highway for a reasonable time must, apart from mere theory, be consider-eel as exclusive. But it has no right to occupy otherwise or to protract its occupancy beyond a reasonable time, and the willful obstruction of a public highway by placing a train of cars across it and allowing such obstruction to remain there an unreasonable length of time is a violation of the criminal statute. — Central of Georgia v. State, 145 Ala. 99, 40 South. 991; Gude v. State, 76 Ala. 100. Judge Thompson’s view is that: “If the train is lawfully obstructing the crossing (that is to say, if it has not obstructed it for a greater length of time than that prescribed by statute or ordinance or, in the absence of statute or ordinance, for an unreasonable length of time), then a pedestrian who attempts to continue his journey upon the highway, by climbing over or between the cars, does so at his own risk. The railway company is under no obligations to keep a special lookout for him or to take special pains to provide for his safety; but his position is substantially that of a trespasser upon its property and is not different, in law, from what it would be if the train were not obstructing a highway crossing. But after the train has obstructed- the crossing beyond the length of time prescribed by statute or ordinance, or beyond a reasonable time in the absence of statute or ordinance, then the' railway company is guilty of an unlawful obstruction of the highway, which is an indictable nuisance; the right of passage on the part of the public is restored; and, if pedestrians undertake to exercise that right by climing over the obstructing train, the railroad company must see to it that it does not kill or injure them while so doing by an affirmative act of its own, namely, by starting forward its train without giving them any warning of its purpose so to do, or without looking out for their safety in any way.” — 2 Thompson, Neg. § 1674. The reason and justice of this view commend themselves to our minds; it is not at variance 'with any rale of our decided cases; and we adopt it as the law of this case. The pedestrian of discreet years who undertakes to go through a train unlawfully obstructing a public road may fail thereby in the observance of that due care for his own safety which the law requires of every such one, and doubtless the court will always so declare, in the absence of special circumstances modifying the general meaning of such a situation; but it does not necessarily result that he is a trespasser. He is no more a trespasser than the pedestrian who negligently walks into a hole negligently left in the street of a city. It cannot be said, as matter of unbending law, that he should either abandon his journey along the public highway or wait indefinitely upon the pleasure of the railroad company. — Phillips v. Railroad Co., 80 Hun. (N. Y.) 404, 30 N. E. 333.

Nor do we conceive that our conclusion is opposed by unanimity of judicial opinion in other jurisdiction; at least it is not opposed in principle, though in a number of cases the language used may vary, for otherwise there can be no rational accounting for those numerous cases in which children of tender years, and occasionally adults, have been alloAved to recover. — Golden v. Railroad Co., 187 Pa. 635, 41 Atl. 302; Railroad Co. v. Mackey, 53 Ohio St. 370, 41 N. E. 980, 29 L. R. A. 757, 53 Am. St. Rep. 641; Phillips v. Railroad Co., supra; Littlejohn v. Railroad Co., 49 S. C. 12, 26 S. E. 967; Gesas v. Oregon Short Line, 33 Utah, 156, 93 Pac. 274, 13 L. R. A. (N. S.) 1074; 33 Cyc. 932, note. We find nothing in our cases of M. & C. R. R. Co. v. Copeland, 61 Ala. 376, and Pannell v. Railroad Co., 97 Ala. 298, 12 South. 236, in conflict with what has been said. No question of unreasonable delay in the movement of trains Avas raised in those cases, and in the first named the court stated that a failure to sound the whistle or ring the hell fixed the charge of negligence on the railroad corporation. It, however, treated the duty to warn as one imposed by the statute.

“A child, as well as an adult, may be a trespasser; and ordinarily a railroad company is under no more obligation to keep a lookout for children who, without enticement for which it is responsible, may go on the track at a place where they have no right to be than to look out for adults.” — Southern Ry. Co. v. Forrister, 158 Ala. 482, 18 South. 71. But children have the same rights in the highway as adults (Government St. R. R. v. Hanlon, 53 Ala. 70), and prima facie judgment and discretion is not presumed of a child under 11 years of age. — B. & A. Ry. Co. v. Mattison, 166 Ala. 602, 52 South. 19; Birmingham Ry. v. Landrum, 153 Ala. 192, 15 South. 198, 127 Am. St. Rep. 25.

We find that there was no error in the rulings on the demurrer to the complaint.

On the authority of the last-cited case, defendant’s plea 2, setting up contributory negligence in a way, without taking issue as to his age, was bad. But the presumption of mental incompetency, though plaintiff was under 11 years of age, provided he was over 7, was rebuttable (authorities last cited), and defendant undertook to set up the defense of contributory negligence in other pleas of later filing. ■ Demurrers to pleas of this character, numbered 3 and 1, were sustained on the theory that counts 7 and 9 of the complaint stated a case of willful or wanton injury. This was error. In the counts referred to, the pleader used language from which it may be inferred that his purpose was to state his case according to the trial court’s acceptation of it. But he failed adequately to do so. These counts were repugnant in themselves and failed to observe the distinction between willful wrong and that wantonness which is the equivalent of intentional wrong, on one hand, and mere negligence or inadvertence, implying the absence of mental action in respect to the thing done, on the other. But that point was not taken, and these counts should have been treated as counts in simple negligence authorizing the recovery of compensatory damages only. They did not state a case of wanton or willful injury, authorizing the assessment of punitory damages to which plaintiff’s contributory negligence would have been no answer. The pleader might have stated his cause of action in a very general way, alleging that the defendant’s agents in charge of the train willfully or wantonly caused his injury, and the means adopted in producing that result. Electing to aver the particulars of the alleged wantonness or willfullness, tosíate the quo modo of its exhibition, he failed to aver facts involving the inference that the act charged was-done with the necessary then present consciousness that,, under the conditions known to exist at the time, to wit, that persons were passing over, through, or under the train, it would probably result in disaster. — L. & N. v. Sharp, 171 Ala. 212, 55 South. 139; Adams v. So. Ry. Co., 166 Ala. 449, 51 South. 987. The allegation is, not categorically that defendant’s agents knew, but alternatively that they knew, or (count 7) by the exercise of ordinary care should have known, or (count 9) by the exercise of reasonable care would have known, that persons were crawling over or under or going between the cars. A failure to take precaution against a mere possibility, or even a probability, that persons would put themselves in a position which would be rendered dangerous by a movement of the train, in the absence of knowledge that some such condition then actually existed, cannot be tortured into anything more offensive: to law or morals than simple negligence. There was error, therefore, in sustaining the demurrers to these pleas as answers to those counts on the ground assigned.

That the court’s construction of counts 7 and 9, in connection with the rulings on the pleas, was prejudicial to defendant not only must he inferred in the absence of an affirmative showing to the contrary but it is made highly probable in fact by indications afforded by the record. These counts proceeded for willful, wanton, and reckless conduct on the part of defendant. In submitting the case to the jury, the court, stating that it had no recollection of any evidence tending to show that plaintiff’s injury resulted from “willful or intentional negligence,” gave in charge the law of wantonness-. Although, as we have written, counts 7 and 9 stated nothing more than simple negligence, and although, if his effort to allege willful, wanton, and reckless conduct conjunctively had been immune to demurrer he could not have recovered on proof of wantonness only (Southern Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927, where many of our cases on this subject are ■collated), yet the issue of wantonness was submitted to the jury, with the statement, correct of course in the abstract, that contributory negligence is no answer to a •charge of willful or wanton injury; and, considering the amount of the damages assessed in connection with the ■extent of plaintiff’s injuries, it seems highly probable that punitory damages were awarded under those counts without regard to whether plaintiff had contributed to his injury by his own negligence. It may be also that, if these counts had been otherwise construed, the court would have granted a new trial on the ground that the damages were excessive. In saying this much we do not intend to intimate that plaintiff had no case for compensation as for simple negligence under the evidence. That was and will be a question for the jury on another trial on issues properly framed.

The rulings on the evidence show no reversible error. We do not appreciate the materiality or the relevency of those matters to which defendant excepted but are unable to see how they could have affected the jury’s finding.

For the error shown, the judgment will be reversed, and the cause remanded for another trial.

Reversed and remanded. All the Justices concur, except Dowdell, C. J., not sitting.