Appel v. Selma Street & Suburban Railway Co.

SAYRE, J.

This was a suit by appellant against appellee on account of injuries done to appellant’s per *466 son and property by a collision with defendant’s street car.

Tbe trial court erred in sustaining a demurrer to count 8 of the complaint.- This count was intended to charge wanton, wrong. Mutatis mutandis, it follows count 4 which was held good in Southern Railway v. Hyde, 164 Ala. 162 , 51 South. 368 . The burden of the demurrer is that the count fails to aver, or show by necessary inference, that defendant’s agent in charge of the car was conscious at the time that people were then and there crossing the street, and that injury would probably result to some of them, and hence that the count insufficiently charged wanton injury. This proposition of the demurrer is answered by the averment of the count to the effect that defendant’s mocorman knew “that people then and there crossed and recrossed said street in great numbers and with frequency, and that injury would likely or probably result to some of said- people.” —Martin v. U. S. & N. Ry., 163 Ala. 215 , 50 South. 897 . And. anyhow, the demurrer should have been overruled, for the count, taken at its worst, stated a case of simple negligence. —Southern Railway v. Weatherlow, 153 Ala. 171 , 44 South. 1019 .

' We are unable to see that this ruling did not injuriously affect plaintiff’s case. None other of the counts upon which the case was submitted to the jury contained averment of the same facts, nor were any of them so general in the averment of facts as to admit proof under them of the facts averred in this count. We therefore hold this ruling for error.

The complaint contained counts for wanton, willful, or intentional wrong; for simple initial negligence; that is, negligence, in the operation of defendant’s car is charged to its agent without any effort to note its relation in respect of time to plaintiff’s going upon the *467 track or the agent’s discovery of the fact that plaintiff had gone upon the track or dangerously near it; and in counts three and four proceeded specifically on the negligence of defendant’s motorman in failing to ring the bell or give other warning of approach, or to use 1.1 ife means at hand to stop the car, after he discovered the plaintiff was in actual danger — subsequent negligénce so-called.

It is urged that pleas 3, 4, 5, and 9 inadequately answered the counts charging subsequent negligence. The view heretofore maintained in this court in respect to the pleading of contributory negligence in such cases sustains appellant’s contention. The complaint inferentially admits in the counts -referred to that plaintiff’s negligence put him in a place of peril. But it is admitted merely as the cause of a condition out of which, upon its observation by the motorman, a new and more exacting duty arose — the duty of using every available-means to stop the car or so retard its speed and give warning of its approach as to afford plaintiff a new chance to escape. —Central of Georgia v. Foshee, 125 Ala. 199 , 27 South. 1006 . To a complaint charging default in respect of such new and emergent duty, a plea, which merely iterates the condition out of which the duty arose is manifestly no answer. And so this court has held that a sufficient plea of contributory negligence in such situations must show that the plaintiff, after becoming aware of his immediate peril, was guilty of further negligence — failed to avail himself of a last clear chance to escape — thus establishing plaintiff’s, negligence subsequent to or concurrent with that of defendant, and displacing defendant’s last negligence as the sole proximate cause of plaintiff’s injury. —N. C. & St. L. Ry. Co. v. Wallace, 164 Ala. 209 , 51 South. 371 .

*468 In pleas 3, 4, and 5, it is averred that the plaintiff negligently remained upon the track “with the knowledge on his part of his peril in so doing.” In plea 8 the averment is, in effect, that plaintiff saw the approaching car in time to have avoided the collision, but negligently remained nevertheless on or dangerously near the track until he was struck. In “9” it is that there was nothing to prevent plaintiff from seeing the car as it approached, and that he could have seen and avoided it by the use of ordinary diligence. It is evident that these pleas, with the exception of that one numbered “8,” do no more than affirm the implied admission of those counts charging subsequent negligence, and are bad. The averment that plaintiff negligently remained upon the track “with knowledge on his part of his peril in so doing,” found in some of them, must-be construed as meaning only that plaintiff had knowledge of the danger ordinarily attendant upon heedlessly remaining at any time upon the track of a railroad in use. Without the unwarranted indulgence of intendment in its favor, it cannot be taken as an averment that plaintiff knew of the danger arising from the immediate approach of the car. These pleas, therefore, under our system, were insufficient answers to counts 3 and 4, which charged negligence on the part of the motorman after discovering plaintiff’s peril, and the demurrers to them should have been sustained.

The demurrer to plea 8 as an answer to all the simple negligence counts — that is, all counts other than those charging intentional or wanton injury — was, however, properly overruled. The motorman of an electric street car may, until the contrary becomes apparent, rightfully presume that persons in the street are possessed of their faculties and will exercise them to keep away from danger or stir themselves to avoid *469 the approaching car. Whether, after the time for the indulgence of this presumption has passed in any case of this peculiar kind, there remains an interval in' which effort on the part of the motorman may help to avert injury, and whether during that interval the person in the street becomes conscious of his peril and contributes to his injury by failing in proper effort to save himself, are questions to be determined by the jury on consideration of the surroundings in such detail as probably no pleading can reproduce.

Certain charges raised a question in respect to the location of the burden of proof. The trial court held otherwise, but appellant renews here his contention that section 5476 of the Code put upon the defendant the burden of proving that there was no negligence on the part of the defendant or its agents. This is the language of section 5476: “A railroad company is liable for all damages done to persons, or to stock or other property, resulting from a failure to comply with the requirements of the three preceding sections, or any negligence on the part of such company or its agents; and when any person or stock is killed or injured, or other property destroyed or damaged by the locomotive or cars of any railroad, the burden of proof, in any suit brought therefor, is on the railroad company to show a compliance with the requirements of such sections, and that there was no negligence on the part of the company or its agents.” It is certain that neither the quoted section nor any of the three preceding sections were, at the time of their original enactment, applicable to electric railroads, for at that time there were none such. It has been held however, that section 5474, Avhich prescribes the duties of engineers and conductors of trains at points Avhere the tracks of two railroads cross each other at grade, governs the case of an *470 electric street railroad (Birmingham Mineral v. Jacobs, 92 Ala. 187 , 9 South. 320 , 12 L. R. A. 830; L. & N. v. Anchors, 114 Ala. 492 , 22 South. 279 , 62 Am. St. Rep. 116 ; Birmingham Southern v. Powell, 136 Ala. 232 , 33 South. 875 ), and, as thus construed, this section has been re-enacted and brought forward in subsequent Codes.

Reasons why section 5473, providing that the engineer or other person having control of the running of a locomotive on any railroad shall blow the whistle or ring the bell in certain designated situations, does not apply to electric railroads are well stated by the Court of Appeals in Birmingham R. L. & P. Co. v. Ozburn, 4 Ala. App. 399 , 56 South. 599 . That court closes its decision by quoting from Dean v. State, 149 Ala. 34 , 43 South. 24 , in which it was held that a statute, which made it an offense for the conductor of a railroad train to fail to keep a sufficiency of good drinking water thereon, did not apply to the conductor of an electric car on an urban, suburban, or internrban street railroad: “We think that this statute was intended to apply to such trains as were known at the time of its first enactment, when electric street or suburban cars were unknoAvn.” We suppose there can be no doubt that section 5475, requiring railroad companies to erect signboards at every public road crossing, was not and is not intended to make an useless addition to the clutter of the average street, it has been the policy of this state to commit the regulation, of such matters and the care and control of streets to the authorities of the municipalities where they are located. The words “railroad company,” unconfined by any context, are broad enough to include both steam and electric roads. But the fact that the liability declared and the rule or procedure *471 prescribed are neither apt nor applicable to electric street railroads in two of the three cases provided for by the preceding sections, whereas the section declares in terms a rule for all cases involving a breach of the duties prescribed in the three preceding sections, is sufficient to require the exclusion of street railroads from the operation of section 5476. There is not in the section a syllable to indicate or justify the conclusion that the word “railroad” is used with different meanings at different places in the section, and in the absence of some such indication to the contrary, to be found in the statute itself, the word must be given some definite, congruous, and consistent meaning throughout tthe section. —Lehman v. Robinson, 59 Ala. 219 ; State ex rel. Meyer v. Greene, 154 Ala. 249 , 46 South. 268 . Any such meaning must be held to include steam railroads and nothing else.

To give the section the meaning for which the appellant contends, to so correlate its provisions and distribute its universal terms as to make them applicable to electric street railroads, in some cases would require a material reconstruction of its language and involve the court in an assumption of the powers of the Legislature. It is not at all certain that any just or safe policy requires for such cases a rule different from that general rule of the law which places the burden of proving a fact upon the party making the allegation, but, if so, that is a matter which should have the attention of the legislative branch of the government. We find no evidence in the statute that as yet it has had such attention. There was no error in the trial court’s rulings on this point.

In giving charge 32 at the request of the defendant, the trial court failed to observe the rule of our cases which dates the plaintiff’s subsequent contributory neg *472 ligence from his own discovery of his peril by reason of the immediate approach of the car rather than from the defendant’s discovery of that fact.

Appellee contends that it was entitled to the general affirmative charge, and hence that errors committed were of no consequence. We are unable to take that view of the case. No preponderance of conflicting testimony, however great, can justify the withdrawal of a disputed question from the jury. The questions as to whether and when the motorman took cognizance of the fact that plaintiff was either unaware of his danger or would not make proper effort to take himself out of danger, and as to whether and when the plaintiff became aware of the near approach of the car — all questions of vital importance in determining the issues proposed by the counts averring subsequent negligence on the part of the motorman and the pleas averring concurring or subsequent contributory negligence on the part of plaintiff — the. answers to these questions were to be inferred from circumstances of doubtful import and were properly left to the jury.

We think this opinion need not be prolonged. We have pointed out reversible error and said enough to indicate our view of the questions involved.

Reversed and remanded.

All the Justices concur.