SHARRE, J.
This action is to' recover for an alleged wrong causing the death of plaintiff’s intestate, Charles M. Bryan, Avhich occurred in a collision betAveen an engine attached to a train of the Louisville & Nashville Railroad Company on Avhich Bryan wras engineer, and an engine attached to a train of the defendant company, at a crossing of tracks operated by those companies, res[526]*526pectively. In Southern Railway Company v. Bryan, 125 Ala. 297, títere is a report of the case as it was presented on a former appeal. The last trial was bad under tlxe first count of the complaint which charged that the death “was caused by the negligence of defendant’s employees who were operating defendant’s said train, in the running and management of said train,” and the fourth count which attributed the death to “wrongful, wanton or intentional negligence of said employees in charge of defendant’s said train, in running said train forward and over said crossing without stopping before reaching said crossing.” Issue was joined on pleas to the first count of the general issue and contributory negligence, and on the general issue pleaded to the fourth count. There are assignments of error based on dispositions made of pleadings which not having been insisted on by argument will be treated as waived. For the same reason a like course is taken with assignments of error numbered 7 and 12 and of so much of' the assignments as related to refused charges 8 and 13.
An error which must work a reversal occurred in the admission, against defendant’s objection, of evidence as to what on© Everly testified on a former trial. Such evidence is admissible where a witness has left the state permanently or for such indefinite time that his return is contingent or uncertain, but it is “admitted with great caution, only from necessity and to prevent a failure of justice,” and the necessity, for it “ought to be shown clearly.” — Harris v. State, 73 Ala. 495; Thompson v State, 106 Ala. 67. The evidence constituting the predicate for proof of what Everly had testified was the testimony of a witness wherein he said with reference to Everly “I don’t know exactly where he lives, I saw him about three or four months ago at Cullman, and asked what he was doing and he said he was switching on some line in Texas; I know he is living in Texas,” and this statement on cross examination, “I know he is living in Texas because he told me then lie xvas living in-Texas.” This, with nothing else to -show Everly’s whereabouts and nothing to show a search for or an effort to [527]*527procure liis attendance at court, falls short of fulfilling the measure of proof required'to lay the predicate.
A similar question is raised on the admission of evidence as to Avliat one Gifford testified on the former trial, hut we pass it because improbable that the evidence as to his absence will be the same on another trial.
The testimony being in conflict as to whether the L. & N. train stopped within one hundred feet of defendant’s track before going upon the crossing or ran at a rapid rate upon it without stopping, it ivas not improper to allow a witness who had testified about the speed of that train at the time of the collision to answer the question, “Was that or not about the usual rate of crossing another railroad after it had stopped?” The affirmative answer had some tendency to show the L. & N. train ivas not running rapidly inasmuch as other evidence, notably the testimony of Lawrence, tended to show that rapid speed was not attainable within one hundred feet after stopping.
A witness shown to have been experienced as a locomotive engineer, and who ivas being examined about the effect of a headlight, such as was on the L. & N. engine, was allowed to answer this question.: “Say the Southern train was coming down here and that light thrown across there' within one hundred feet of the crossing, how far could the engineer of the Southern see the light?” The question being in hypothetical form must naturally have been understood as calling for an opinion as to the distance such light wast visible from one in the position of defendant’s engineer, and Avars not objectionable as calling for a conclusion.
The following statesments of defendant’s Avitness, Johnson, Avho Avas a brakemail on its train, Avere properly excluded, viz: “I thought they Avould surely stop for the crossing;” “Our engineer must have put on his air just about the time they struck us.” “The position of the engines after the accident, and the appearance of the front of the L. &. N. engine clearly shoAved that they struck us, and struck us a very hard blow.” The first of those statements Avas of a mere mental operation. The other twu Avere conclusions and not facts.
[528]*528On the first appeal it was decided that from the evidence then before the court, it appeared that plaintiff’s intestate, Bryan, was negligent, in that he failed in the statutory duty of knowing before attempting to cross defendant’s track, that the crossing was clear. At the last trial the evidence on which that decision was based, was substantially reproduced, but added thereto, was the testimony of Lawrence, the fireman of the L. & N. engine, which tends to show not only that his engine was stopped within 100 feet of the crossing, but that thereafter before proceeding both he and Mr. Bryan made efforts to ascertain whether the crossing was clear, and that it was in fact clear, at the time they proceeded to cross. This is inferable from the following testimony of this witness together with other evidence showing the accident occurred at night, and that the L. & N. engine had a headlight and that defendant’s engine had none except a small lantern fixed in the place usually filled by a headlight, and that defendant’s train came from the right of Bryan as he faced the crossing: “We stopped long enough to look out and see if anything was coming. I was on the left side and Mr. Bryan was on the right, those being our proper places. Bryan asked me how is everything on your side. I said everything is all right, go ahead. I could see the way clear about 100 or 150 yards. There was no train in there when we started across and no light at all. There was a string of cars on the Southern track running at right angles to our track, five or six cars extending to within about fifty feet of the Mineral track we were going on. These cars were in front and to our right; were about eight feet apart. 1 could see and did see Mr. Bryan look up on the right side of the yard and across the crossing before he started across. After he stopped we made an investigation, he was looking when he started, and there was no train at all for 150 yards up on the Southern track to our right, and no light at all. There were no cars standing on that main line track where the collision occurred. No whistle Mowed at all except ours, and no bell rang except ours. The Southern didn’t ring any bell or blow -any whistle. The way was perfectly clear when we started across with [529]*529our engine. We went across tliere at the rate of some-' thing like three miles an hour, because we stopped dead still, and a person in that distance could not go very fast, and it was such a dark, dreary night we were very careful.”
Free access — add to your briefcase to read the full text and ask questions with AI
SHARRE, J.
This action is to' recover for an alleged wrong causing the death of plaintiff’s intestate, Charles M. Bryan, Avhich occurred in a collision betAveen an engine attached to a train of the Louisville & Nashville Railroad Company on Avhich Bryan wras engineer, and an engine attached to a train of the defendant company, at a crossing of tracks operated by those companies, res[526]*526pectively. In Southern Railway Company v. Bryan, 125 Ala. 297, títere is a report of the case as it was presented on a former appeal. The last trial was bad under tlxe first count of the complaint which charged that the death “was caused by the negligence of defendant’s employees who were operating defendant’s said train, in the running and management of said train,” and the fourth count which attributed the death to “wrongful, wanton or intentional negligence of said employees in charge of defendant’s said train, in running said train forward and over said crossing without stopping before reaching said crossing.” Issue was joined on pleas to the first count of the general issue and contributory negligence, and on the general issue pleaded to the fourth count. There are assignments of error based on dispositions made of pleadings which not having been insisted on by argument will be treated as waived. For the same reason a like course is taken with assignments of error numbered 7 and 12 and of so much of' the assignments as related to refused charges 8 and 13.
An error which must work a reversal occurred in the admission, against defendant’s objection, of evidence as to what on© Everly testified on a former trial. Such evidence is admissible where a witness has left the state permanently or for such indefinite time that his return is contingent or uncertain, but it is “admitted with great caution, only from necessity and to prevent a failure of justice,” and the necessity, for it “ought to be shown clearly.” — Harris v. State, 73 Ala. 495; Thompson v State, 106 Ala. 67. The evidence constituting the predicate for proof of what Everly had testified was the testimony of a witness wherein he said with reference to Everly “I don’t know exactly where he lives, I saw him about three or four months ago at Cullman, and asked what he was doing and he said he was switching on some line in Texas; I know he is living in Texas,” and this statement on cross examination, “I know he is living in Texas because he told me then lie xvas living in-Texas.” This, with nothing else to -show Everly’s whereabouts and nothing to show a search for or an effort to [527]*527procure liis attendance at court, falls short of fulfilling the measure of proof required'to lay the predicate.
A similar question is raised on the admission of evidence as to Avliat one Gifford testified on the former trial, hut we pass it because improbable that the evidence as to his absence will be the same on another trial.
The testimony being in conflict as to whether the L. & N. train stopped within one hundred feet of defendant’s track before going upon the crossing or ran at a rapid rate upon it without stopping, it ivas not improper to allow a witness who had testified about the speed of that train at the time of the collision to answer the question, “Was that or not about the usual rate of crossing another railroad after it had stopped?” The affirmative answer had some tendency to show the L. & N. train ivas not running rapidly inasmuch as other evidence, notably the testimony of Lawrence, tended to show that rapid speed was not attainable within one hundred feet after stopping.
A witness shown to have been experienced as a locomotive engineer, and who ivas being examined about the effect of a headlight, such as was on the L. & N. engine, was allowed to answer this question.: “Say the Southern train was coming down here and that light thrown across there' within one hundred feet of the crossing, how far could the engineer of the Southern see the light?” The question being in hypothetical form must naturally have been understood as calling for an opinion as to the distance such light wast visible from one in the position of defendant’s engineer, and Avars not objectionable as calling for a conclusion.
The following statesments of defendant’s Avitness, Johnson, Avho Avas a brakemail on its train, Avere properly excluded, viz: “I thought they Avould surely stop for the crossing;” “Our engineer must have put on his air just about the time they struck us.” “The position of the engines after the accident, and the appearance of the front of the L. &. N. engine clearly shoAved that they struck us, and struck us a very hard blow.” The first of those statements Avas of a mere mental operation. The other twu Avere conclusions and not facts.
[528]*528On the first appeal it was decided that from the evidence then before the court, it appeared that plaintiff’s intestate, Bryan, was negligent, in that he failed in the statutory duty of knowing before attempting to cross defendant’s track, that the crossing was clear. At the last trial the evidence on which that decision was based, was substantially reproduced, but added thereto, was the testimony of Lawrence, the fireman of the L. & N. engine, which tends to show not only that his engine was stopped within 100 feet of the crossing, but that thereafter before proceeding both he and Mr. Bryan made efforts to ascertain whether the crossing was clear, and that it was in fact clear, at the time they proceeded to cross. This is inferable from the following testimony of this witness together with other evidence showing the accident occurred at night, and that the L. & N. engine had a headlight and that defendant’s engine had none except a small lantern fixed in the place usually filled by a headlight, and that defendant’s train came from the right of Bryan as he faced the crossing: “We stopped long enough to look out and see if anything was coming. I was on the left side and Mr. Bryan was on the right, those being our proper places. Bryan asked me how is everything on your side. I said everything is all right, go ahead. I could see the way clear about 100 or 150 yards. There was no train in there when we started across and no light at all. There was a string of cars on the Southern track running at right angles to our track, five or six cars extending to within about fifty feet of the Mineral track we were going on. These cars were in front and to our right; were about eight feet apart. 1 could see and did see Mr. Bryan look up on the right side of the yard and across the crossing before he started across. After he stopped we made an investigation, he was looking when he started, and there was no train at all for 150 yards up on the Southern track to our right, and no light at all. There were no cars standing on that main line track where the collision occurred. No whistle Mowed at all except ours, and no bell rang except ours. The Southern didn’t ring any bell or blow -any whistle. The way was perfectly clear when we started across with [529]*529our engine. We went across tliere at the rate of some-' thing like three miles an hour, because we stopped dead still, and a person in that distance could not go very fast, and it was such a dark, dreary night we were very careful.”
By the statute (Code 1896, §3141), it is provided with reference to engineers and conductors that after stopping and before proceeding to run a train over a railroad crossing they must “know the way to be clear.” This provision is to be construed as requiring knowledge, not only that the crossing is free from immediate obstruction, but free from danger of such obstruction as ought reasonably to be expected. It does not, however, require knowledge “that the way will certainly remain clear against all after occurring, extraordinary, unanticipated and unascertainable happenings.” — Southern Railway Company v. Bryan, supra. Touching further the conduct of Bryan, and also the conduct of those operating defendant’s train, Lawrence testified: “When we started across Ave gave two short blasts of the whistle, not very loud, a signal to go ahead, that could be heard two or three miles around the country. I rang the bell, commenced ringing way around in the avoocLs at that park place before we got around. I Avas ringing the bell AA-hen we stopped and after Ave started — kept on ringing the bell. The next'thing that happened to us Avas a stroke from the approaching engine that struck, it looked like to me, someAvhere about the middle of the engine,” etc. In view of Lawrence's testimony and the whole evidence, the question of Avhether the pleas of contributory negligence was sustained Avas proper for the jury’s determination.
The quéstion of defendant’s liability vel non whether considered under the first or fourth counts of the complaint Avas likeAvise proper for' determination by the jury, for the evidence gave room for inference that defendant’s servants when running its train to the crossing Avere aware of the peril to which that action exposed those running the L. & N. engine in time to have stopped' before striking. That being so, it was for all that appears, open to the jury to further infer and to find, either [530]*530that the collision and death were due to a negligent failure on the part of defendant’s servants to use preventative effort, or that they wilfully, wantonly or intentionally caused the same. — L. & N. R. R. Co. v. Brown, 121 Ala., 222; Central of Ga. Ry. Co. v. Lamb, 124 Ala. 172; Louisville & Nashville R. Co. v. Markee, 103 Ala. 160; Ga. Pac. R. Co. v. Lee, 92 Ala. 262.
It follows that the court was right in refusing the requested general affirmative charge and those which expressly or impliedly negatived a right to recover under the first count, viz: charges 3, 4, 5, 9, 10/ 11, 12, 18 and 20, and also that it was proper to refuse charges 2, 6, 7 and 21, each of which were inconsistent with any right to recover under the fourth count. Charge 14 is incomplete and obscure, and charge 17 is made bad by the occurrence therein of the word “not.” Wantonness or willfulness short of intentional wrong doing might have warranted, a recovery under the fourth count, and, therefore, the refusal of charges 16 and 22 was proper. A headlight may be servicable not only to the engineer using it, but as a warning to others of the train’s approach. It was wrongly assumed in charge 19 that the absence of a headlight on defendant’s engine would not afford ground for recovery if the use of one would not have disclosed an obstruction to the engineer.
The part of the oral charge excepted to involved no reversible error.
Reversed and remanded.