North Birmingham Street Railway Co. v. Wright

130 Ala. 419

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

McCLELLAN, C. J.

The trolley poles by the side of defendant’s track were only three feet four inches clear of the ball of the rail next to them. They were twelve inches in diameter at the base and they stood twenty-five feet above ground. The track approaching them from each direction and passing them was straight, and there was nothing to obstruct g view of them by persons on the engine going in either direction. It was little short of marvelous if Wright did not see them as he ‘was going out though he wasi on the side of the engine furthest, from them. His duty was to keep a lookout along the track ahead of his engine. Presumably he discharged that duty. It is scarcely conceivable that he could have looked along the track ahead and failed to see these poles as he went out from Birmingham. Baker knew when he started him back to the city that he had just previously come thence along this track by the poles. Had Baker’s attention been specially directed to the matter, he would most naturally have supposed that Wiright had seen the poles and knew of their location with reference to the 'track. So on the return trip. Then the poles were on Wright’s side of tin engine. The track along there and the poles were in the open country. In his view ahead the poles were the most conspicuous objects. Between them and the line of railway there was abundant room for safe passage of the engine and train and for the safe performance by the engineer of every duty which any man of ordinary foresight, care, prudence and precaution could have anticipated he would be called upon to perform. 'The distance from the outer line or surface of the engine cab to the inner line of the poles ¡was twenty-three inches. The poles were one hundred feet apart. There were only four or five of them. For the engineer to- be injured while passing the poles and by them it was necessary for him to protrude his body through the window of the cab, within a fraction of an inch of the distance of two feet. The only possible occasion for thus subtending himself was such a rattling and knocking of rods immediately under Wright’si seat in the cab as .indicated some disorder -or break there. We take it that the occurrence of such occasion is rare indeed, and not a thing to be anticipated. It would seem, too, that the anticipation of such an occurrence would involve no anticipation that the engineer would in consequence thus protruds his person through the window, since if the disorder was slight and immaterial looking at it was unnecessary and if it was material looking -at it would not remedy it, and in either case the most natural thing for the engineer to do would be to stop, alight and examine it from the ground. From the point of view, therefore, of Baker, the possibility of Wright’s throwing his body so far out of the cab window as he was passing these poles so as to bring Ms head in -collision with one of them was so essentially and infinitely remote, so beyond 'all anticipation enjoined by ordinary prudence as that the necessity of warning Wright of the location of the poles would never have occurred to a man of ordinary care and prudence. Under the circumstances Baker was not called upon to assume that Wright had not seen the poles as he -came out, nor, if not then, that he would not see them on the return trip, nor, though he had not seen them before that he would not look ahead for any obstruction and then see them before thrusting his body so great a distance beyond the line of his cab, nor, though he never saw them, that he would have any occasion for so exposing himself. And our conclusion therefore is that, even conceding that Baker had or was chargeable with knowledge of the location of the poles, which we do not decide, yet be was guilty of no negligence in failing to inform Wright in that regard. This conclusion is in. line with the authorities generally which will he found collated in an exhaustive and able note to the case of James v. Rapides Lumber Co., 44 L. R. A. 36-90, and with the principles declared in our own cases, and it is squarely and directly supported by the decision of this court in Louisville & Nashville Railroad Company v. Bouldin, 121 Ala. 197, 208.

The trial court should, therefore, have given the affirmative charge requested by the defendant; and for the error committed in its refusal the judgment must be reversed. The cause will be remanded.

Reversed and remanded.