Gulf, M. & N. R. Co. v. Fowler

1. Appeal and error 553(I)— Submitting hypothet- ' ica! question based on evidence not error. In an action for-a crossing accident, where there was ample evidence to support it, there wgs no error in submitting a hypothetical question as to the distance within which an engine and three cars, running 15 ’miles an hour, could be stopped by the application of an emergency brake. . . . 4. Trial 9l — Objection to admission of evidence held too late. Motion to exclude testimony of a witness, which was brought out on direct and cross-examination without objection, will be denied. 5. Railroads (&wkey;)35l (22) — Charge on discovered peril hfeld erroneous. A charge .which fastens liability on defendant for injury at a crossing, if it did not, on discovery of plaintiff’s perilous position, so regulate the speed of the train as to bring it to a stop, and which ignores the proposition that defendant’s servants must have discovered her perilous position .in time to have avoided the injury, is erroneous. 6. Railroads &wkey;>338 — injury avoidable after peril is discovered actionable. ■Where the peril of a person on a crossing could, have been diseoyered in time to avoid injury by the exercise of due care on the part of the railroad’s servants, and if the injury was the result of failure to perform defendant’s duty, plaintiff may recover, although guilty of culpable negligence. 7. Appeal and error For other ’cases see same topic and KB r -N UMBER, in all Key-Numbered Digests and Indexes

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge. ( Action for damages by Julia Fowler against the' 'Gulf, Mobile & Northern Railroad Company.' Judgment for plaintiff, and defendant appeals. Count 2 of the ■ complaint, upon which the cause was tried, charged, in substance, that defendant opérated a line of railroad in the city of Mobile; that on the occasion in question plaintiff was lawfully prossing this line of railroad,' at a public street crossing, in her automobile; that while plaintiff was in a place of danger'-on or -near the track'an engine and trdin of defendant, operated and controlled by its servants or agents in the line and scope of their authority, was approaching the crossing at such a distance therefrom as to permit of the -stopping or slowing of the engine and avoidance of injury to plaintiff, and that, though said servants or agents knew of plaintiff’s peril, and had means at hand of stopping or slowing the train, they negligently failed- to use such moans, but negligently permitted said engine or train to run against plaintiff’s automobile, causing’ the injuries alleged. Plaintiff, as a witness, testified, in effect, that as she approached the crossing she was moving slowly; then when she came nearly |upon the track she discovered the train approaching some 280 "or 290 feet down the ■track; that she observed 'that, at the point -where she stopped, the “bumper”^ of the automobile extended beyond the first rail, and, with the purpose of reversing the car, pushed the lever into “second,” by mistake, and accelerated the motor, whereupon the car shot forward and was struck by the engine. Further testifying, on cross-examination, the plaintiff said: “As to whether I told Dr. Jackson when he came to see me in the afternoon that, when I first saw the train, it was about 20 feet,away and that I did not know what happened, will say I don’t remember saying that.” Defendant then asked the witness: “You may have said that?” To this question plaintiff objected, the court sustained the objec- ¡ tion, and defendant excepted. Charges 1, 2, and 3 given at plaintiff’s request, are as fdllows: “1. I charge you, gentlemen of the jury, if the servants or agents of a railroad company in charge of a train of cars sees a vehicle on the track, or dangerously near to it, and sees that the driver of the vehicle is either ignorant of the approach of the train or driving without regard to it, it is the duty of the servants or agents of the train to so regulate the speed of the train as to be able to immediately stop it, and to actually stop it in time to prevent injury, if that becomes necessary, and if they fail to do so and damage results by reason thereof, the railway company is liable therefor, for damages claimed by the complaint, and proved, not exceeding amount claimed. In such a case, if the vehicle is on or dangerously.near the track through the. negligence of the driver, such negligence is • a remote, not proximate, cause of the injury. “2. I charge you, gentlemen of the jury, if the plaintiff’s peril was discovered in time to avoid the injury by the exercise of due care on the part of the defendant, and the injury was the result of its failure to perform its duty in this respect, plaintiff would lie entitled to recover, although she may have been' guilty of culpable negligence in the first instance. “3. I charge you, gentlemen of the jury, if you are reasonably satisfied from all the evidence that the plaintiff was on or so near the railroad track of the defendant’s company as to be in danger of being struck by a passing train, and- this fact known to the servants or agents in charge of train of the defendant in time for the said servant or agent of defendant to have stopped or slowed the train so g.s to have avoided a collision, and the defendant’s train was not stopped or slowed and the collision occurred, then you must find for the plaintiff for such damages as the evidence shows was sustained claimed in complaint.” The following charges were refused the defendant: “13. If the jury are reasonably satisfied from the evidence in this case that the plaintiff negligently failed to stop, look, and listen before attempting to cross the track, within the space that would have been sufficient to enable her to stop said automobile before going on said track, in the event she discovered the train approaching, and that this proximately contributed to the injury, you cannot find for the plaintiff unless the engineer, after the fireman or he became conscious of the peril of plaintiff or the automobile, had time to stop the engine before striking it or her by the skillful use that a skillful engineer could have made of all means at hand to stop said engine. "15. The court charges the jury that, where one, without stopping, looking, or listening at a public crossing before attempting to cross or putting herself in peril, the railroad company owes her no duty except the exercise of reasonable care and diligence to avoid injuring her or her property as soon as her peril becomes evident. "l(j. If you are reasonably satisfied from all the evidence iú this case that the plaintiff failed to stop, look, and listen before reaching a place where she would be struck by the train in passing, and that she then attempted to drive across the track in front of the approaching train, and that all of this proximately contributed to the injury, you cannot find for the plaintiff unless the engineer, after he or the fireman became conscious of the peril of the plaintiff or her automobile, had time to stop or slow down the engine before and so as to avoid striking her or said automobile by the skillful use that a skillful engineer could have made of all the means at hand to stop the engine. "IS. The court charges the jury that, if the plaintiff drove from a place of safety in front of an approaching train and so close thereto that the enginfeer could not, by the use of all means known to skillful engineers, avoid the injury, then the plaintiff cannot recover. "19. If the jury are reasonably satisfied, from all the evidence in this case, that the operatives of the train did not willfully or wantonly run into the plaintiff’s ear, or negligently run into it after the discovery of her peril, they must find for the defendant.” It is not the duty of trainmen, on merely seeing an automobile driver in peril, absolutely to so regulate the speed of the train as to prevent injury. He must be seen in time to stop. 159 Ala. 195, 48 South. 798, 133 Am. St. Rep. 32; 190 Ala. 156, 67 South. 269; 78 South. 159; 202 Ala. 222, SO South. 44: 179 Ala. 303, 60 South. 022 ; 201 Ala. 104, 77 South. 690; 193 Ala. 614, 69 South. 137; 16 Ala. App. 614, 80 South. 688. The law does not require a higher degree of care than that of a skillful engineer under like circumstances. 205 Ala: 179, 87 South. 533. Charge 3 was erroneously given for plaintiff. 199 Ala. 654, 75 South. 15; 156 Ala. 269, 47 South. 84; 203 Ala. 555, 84 South. 260 ; 201 Ala. 5, 75 South. 154; 164 Ala. 308, 51 South. 338. Trainmen, seeing an autoist approaching a public crossing, have the right to assume that he will not put himself in danger. 196 Ala. 77, 71 South 455; 179 Ala. 303, 60 South. 922; 197 Ala. 151, 72 South. 328; 203 Ala. S6, 82 South. 100; 203 Ala. 3, 81 South. 671; 205 Ala. 179, 87 South. 533; 185 Ala. 659, 64 South. 581; 125 Ala. 227, 27 South. 979. The defendant was due the general charge. 193 Ala. 654, 75 South. 15; 156 Ala. 269, 47 South. 84; 203 Ala. 555, 84 South. 260; 199 Ala. 571, 75 South. 159; 169 Ala. 308, 53 South. 805. Charge 1 was given for plaintiff without error. The charge as given necessarily implied liability on defendant, if and only in event the train could have been stopped in time to prevent injury, after defendant’s agents or servants saw plaintiff's dangerous position. The charge was not misleading; but, if defendant was of opinion it had a tendency to mislead, explanatory instructions should have been requested. 12 Michie’s Ala. Dig. 517; 14 Michie’s Ala. Dig. 1029; 179 Ala. 539, 60 South. 838; 200 Ala. 669, 77 South. 43; 189 Ala. 656, 66 South. 632; 3 Ala. App. 375, 57 South. 404; 17 Ala. App.-280, 84 South. 630. Charges 2 and 3 were correctly given for plaintiff. 3 Ala. App. 375, 57 South. 404;. 199 Ala. 656, 75 South. 15; 156 Ala. 281, 47 South. 84. By reason of plaintiff’s danger she is not expected to exercise such care as would cause her to do exactly the proper thing. 117 Ala. 274, 23 South. 778 ; 97 Ala. 141, 12 South. 86; 174 Ala. 657, 56 South. 1013; .128 Ala. 313, 29 South. 562; 10 Michie’s Ala. Dig. 579. The case having been tried on subsequent negligence, the doctrine of stop, look, and listen has no application. 199 Ala. 657, 75 South. 15.