Savannah & Western Railroad v. Meadors

95 Ala. 137

• Court: Supreme Court of Alabama
• Decided: December 15, 1891
• Status: Published

Opinion

COLEMAN, J.

"We will consider the case upon the hypothesis that the facts are as contended for by the plaintiff. According to this assumption, Eobert Meadors was run over and killed by an engine of the defendant within the corporate limits of the city of Opelika, about 8 o’clock p. M. on the 13th of September, 1888. At the time he was struck by the engine, he was on his way home, walking up the railroad track of the defendant, and within a cut, about twenty feet deep and some four or five hundred yards in length. That behind him, in the direction from where the engine was coming, there were street crossings, and public road crossings, and one not very far from the entrance to the cut; and that deceased came to his death after he had gone about one hundred or one hundred and fifty yards in the cut. There were curves in tbe road, which obstructed the view for less than a fourth of a mile. That the engineer did not blow the whistle, or ring the bell, before reaching the crossing, and did not blow the whistle or ring the bell at short intervals, while moving within or passing through the city, as required by section 1144 of the Code ; and that defendant had no head-light. The negligence of the defendant in one or more of these requirements, it is contended, caused the death of the decedent.

Conceding that the proof of these facts shows negligence on the part of the defendant, does the proof, as admitted to be true, show that the deceased was guilty of such contributory negligence as to deprive the plaintiff of the right to maintain this action? There was no city ordinance regulating the speed of trains running within the corporate limits. The duties imposed upon railroads by section 1144 of the Code were intended to protect persons or property rightly at or approaching public crossings of the road, or stopping-places for the trains, but have no application to places or conditions not within its provisions. In the case of the Ensley Railway Co. v. Chewning, 93 Ala. 24, it is said : “While a person intending to take a train, awaiting its arrival, should not be regarded as a trespasser, should he merely cross or inadvertently step on the track in the dark, at or about the usual stopping-place; plaintiff, having walked up the track beyond the limits of the usual stopping-place, to meet the train, and having knowingly and voluntarily stepped and stood on the cross-ties, wliere he was not invited, and had no right to be, must be regarded as a quasi-trespasser, or, as we have said, was guilty of negligence contributing to his own injury.” In the case of the Memphis & Charleston R. R. Co. v. Womack, 84 Ala. 150, it was declared to be the settled doctrine in this State, supported by the great weight of authority in England and America, that ordinarily the right of way of a railroad company is its exclusive property ; free and unobstructed use is essential to the transaction of the business of the company; mere acquiescence in the use of its right of way does not confer on the public a right to use it, nor create any obligation to look out for persons using it, other than the general duty to look-out for obstructions; and that it was not competent to introduce evidence of the custom of people to walk on the track.

When a railroad track runs through parts of a city, town or village which are thickly populated, and where the demands of trade and public intercourse necessitate the fre-querit crossing of tbe track, it is tbe duty of those operating an engine along tbe track in such places to keep a look-out. Tbis duty to keep a look-out for persons is not specially imposed by statute, but arises from tbe likelihood that in such places there are persons on tbe track, and tbe bounden duty to duly guard against inflicting death or injury in places and under circumstances where it is likely that injury may result unless care be observed. Tbe duty arises when tbe circumstances exist which call for its exercise. Tbe mere usage or custom of crossing tbe track at any particular place does not give rise to tbe duty to keep a look-out. Tbe population and intercourse of a city, town or village must co-exist with tbe usage, to tbe extent that it is likely there are persons upon tbe track at tbe particular time or place. We do not think tbe track of a railroad can be converted into a road for ordinary travel, and one who undertakes to make such use of it becomes a trespasser. Tbis we understand to be tbe extent of tbe rule declared in M. & C. R. R. Co. v. Womack, supra, and in accord with Go. Pa. R. R. v. Blanton, Ib. 154; and as thus qualified, tbe case of S. etc S. & N. R. R. Co. v. Donovan, 84 Ala. 146, is reaffirmed.

Under tbe evidence as it appears in tbe record, we do not doubt that, at tbe time Bobert Meadows came to bis death, be was a mere trespasser. Tbe neighborhood where he was killed was sparsely settled, as much so as many country neighborhoods. The long cut into which be entered was not used, and could not be used, as a place for crossing the track. Its only use by the public was that of personal convenience for travel as a road, and was not at all necessary for tbis purpose. When tbe deceased entered this long, deep cut at night, to use it as a road in going home, he became a trespasser, and was, per se, guilty of contributory negligence. Such being tbe case, under the evidence as it appears in the record, the right of plaintiff to recover is narrowed down to the inquiry, whether tbe defendant was guilty of reckless, wanton negligence, or intentionally inflicted tbe injury. Did the defendant discover tbe danger of plaintiff’s intestate in time to avoid the injury by the exercise of due care and exertion, and did it fail to exercise such due care ? Such negligence must be shown, to overcome the defense of contributory negligence.

We deem it unnecessary to consider in detail the several assignments of error based upon the charges given and the refusal to charge as requested. The trial court evidently proceeded upon the idea, that the use of the railroad track in a city or town as a road for travel was not a trespass, or tbat tbe law imposed npon tbe defendant tbe dnty to keep a vigilant look-ont even for trespassers npon its track, so long as it was inside tbe corporate limits, without regard to population and public intercourse and usage, and without regard to tbe fact tbat tbe deceased was using tbe track as a road for travel for bis personal convenience, at a time and in a place where there was no likelihood tbat any one would be. This, we have seen, is not a proper construction of tbe law. Tbe statute requires, in express language, tbat tbe engineer shall blow tbe whistle, or ring tbe bell, at short intervals, while moving within and passing through a city or town; and we bold this duty is co-extensive with tbe city or town, as we have explained. Tbe mere failure to comply with these statutory requirements has never been held to constitute more than simple negligence.

Under our system of pleading, under a count for simple negligence, a recovery may be bad upon proof of wanton negligence.

The first, second and fourth counts present a good cause of action. Tbe negligence of tbe defendant is sufficiently averred in each of these counts. — Mobile & Ohio R. R. Co. v. George, 94 Ala. 199. Applying tbe rule, tbat tbe pleadings must be construed most strongly against tbe pleader, tbe third count is defective. It is averred that tbe injury occurred in a deep cut of tbe road. Although in a city, from tbe description of tbe place where tbe injury occurred, prima facie we would conclude from all tbat is stated in tbe pleadings that tbe deceased was there without invitation, and was a trespasser. When tbe pleadings show that plaintiff was a trespasser, be must aver more than simple negligence to authorize him to recover. Tbe negligence must be wanton* or reckless, or tbe injury intentional. Tbe complaint contains no such averment. — Ensley Railway Co. v. Chewning, 93 Ala. 24

We have considered only tbe testimony of tbe plaintiff, because all tbe principles of law which govern tbe case are sufficiently raised by this evidence.

Reversed and remanded.