Opinion
35915.
DECIDED JANUARY 31, 1956.
Damages. Before Judge Worthy. Cairo City Court. July 30, 1955.
Peacock, Perry Walters, Bell Baker, for plaintiff in error.
Willard H. Chason, contra.
1. The general and special demurrers are without merit.
2. The evidence is sufficient to sustain the verdict as to the general grounds.
DECIDED JANUARY 31, 1956.
Mrs. J. L. Clark brought suit against the Atlantic Coast Line Railroad Company for damages allegedly sustained by her and resulting from a collision between one of the trains of the defendant and an automobile belonging to the plaintiff, being driven by her son and agent, J. L. Clark, Jr. Recovery is sought for damage to the automobile.
The petition, brought in two counts, alleged in count 1 as follows: "2. Defendant's railroad tracks in the City of Cairo, run in an east-west direction and intersects with 3rd Street, which runs in a north-south direction, in the City of Cairo, said street being a public street and used generally and frequently by the public, and known to be a public street and used frequently by the public, by the defendant.
"3. On December 20, 1954, between 6:30 and 6:45 p. m., plaintiff's car was being driven by her agent and son, with her permission, in a southerly direction on 3rd Street N.E. In a careful and prudent manner, and in an attempt to cross over defendant's tracks at said intersection, was hit by one of defendant's cars being pushed backwards across said public crossing by an agent and employee of defendant who is unknown to plaintiff but known to defendant.
"4. Plaintiff shows that it was dark, that the defendant had no lookout, no flagman, gave no signal either with its whistle or bell to signify the approach of its train to said public crossing, but did, with total disregard for the property rights of plaintiff, negligently back said train across said public crossing and into plaintiff's automobile.
"5. Upon hitting plaintiff's automobile, defendant's agent, and/or agents continued to push plaintiff's car down the defendant's tracks for a distance of approximately 15 feet thereby damaging beyond repair said automobile.
"6. Plaintiff shows that her car, which was a 1949, Oldsmobile 88, and had a market value of $850 prior to being destroyed by the negligent acts of defendant's agents, and said automobile after being struck had a value of $100, thereby damaging plaintiff in the sum of $750."
By amendment the following was added to paragraph 4: "Contacting plaintiff's automobile in the left front door with such impact that the frame was bent and the chassis pushed over on said frame approximately two inches."
Count 2 was substantially the same as Count 1, with the further allegation that the negligence on the part of the defendant was wilful and wanton. The plaintiff alleged that the defendant was negligent in the following particulars: "(a) Failure to keep a proper, diligent, constant and vigilant lookout along the track ahead of the train. (b) Failure to exercise due care in order to avoid injury to plaintiff's automobile. (c) Failure to use ordinary care in the backing of said train over a frequently used public crossing. (d) Failure to give any warning of any kind — bell or whistle — in approaching or passing over said public crossing. (e) Failure to stop said locomotive and cars and thereby avoid injuring plaintiff's automobile. (f) Negligent backing, in the dark of a train across a public crossing without the giving of any warning to plaintiff."
The defendant filed general and special demurrers as follows: "1. Defendant demurs generally to the petition of the plaintiff for the reason that said petition fails to set out a cause of action against defendant.
"2. Defendant demurs to the petition of the plaintiff for the reason that the petition is vague, ambiguous, uncertain and indefinite in that it does not contain any allegation as to the width of Third Street, N.E.
"3. Defendant demurs to paragraph numbered 3 and particularly to the words `in a careful and prudent manner,' for the reason that said paragraph and said quoted words state a conclusion of the pleader which is not supported by any fact alleged anywhere in said petition.
"4. Defendant demurs to paragraph number 3 for the reason that said paragraph is vague, ambiguous, uncertain and indefinite in that: (a) It fails to allege whether or not the driver of the automobile was keeping a look-out ahead. (b) It fails to allege how far in feet the driver of the automobile was from the train when he saw the train. (c) It fails to allege whether or not the driver of the automobile looked to his left before entering the intersection. And (d) It fails to allege whether or not the driver of the automobile saw the flagman.
"5. Defendant demurs to paragraph numbered 6 for the reason that said paragraph is vague, ambiguous, uncertain and indefinite in that: (a) It fails to allege the style and model of the automobile. (b) It fails to allege the mileage on the automobile. (c) It fails to allege the cost of repairs. (d) It fails to allege what damage was done to the automobile. (e) It fails to allege what repairs, if any, were necessary and cost thereof. And (f) It fails to allege whether or not the automobile has been repaired and if so, by whom."
The demurrers to Count 2 were the same as to Count 1 with the addition of a paragraph numbered 6 as follows: "Defendant demurs to paragraph numbered 2 of said Count II for the reason that said paragraph is vague, ambiguous, uncertain and indefinite in that it fails to allege: (a) When the defendant's agents knew of the approach of the driver of the automobile. And (b) The position of the driver of the automobile with reference to the track when the defendant's agents knew of his approach."
The defendant answered, admitting the jurisdictional facts of the plaintiff's petition and denying the allegations as to negligence, and for further plea and answer the defendant said that such damages as the plaintiff sustained were due to and caused solely by the negligence of the plaintiff's son and agent. The court overruled the demurrers. A motion for new trial was filed on the general grounds, and was denied. Error is assigned on the judgment overruling the demurrers and on the denial of the motion for new trial.
The evidence was substantially as follows: The plaintiff introduced the operator of the car, who testified that he approached the crossing and looked out east and west down the railroad track as he was approaching the railroad crossing, driving south; that he did not see any train approaching the crossing and heard no sounding of a bell or whistle and heard no noise indicating an approaching train; that there was no one flagging the crossing; that as he approached within about 6 feet of the track the train, consisting of an engine and 3 or 4 boxcars, was backing west toward the crossing; that when he arrived at the crossing the train backed into the automobile, practically demolishing the automobile; that the automobile was worth $850 before the train struck it and thereafter was worth only $100. The evidence of the plaintiff further showed that the railroad company was violating the rules of the railroad, as well as an ordinance of the City of Cairo regarding the flagging of crossings on the railroad. The plaintiff introduced further evidence to the effect that the side track north of the railroad, as the plaintiff was driving south on the street, was blocked by boxcars so near to the crossing that one approaching the railroad from the north could not see the train approaching the crossing or engaged in switching operations. The plaintiff made a statement at the scene of the collision that he was to blame because he did not see the train for the reason that he was not looking. However, the plaintiff proved by other witnesses that it was impossible for him to have seen the train because of the boxcars on the north side of the railroad having been parked so near to the crossing. The plaintiff introduced a witness, one Mr. Wight, who approached the scene of the collision a few moments after the collision occurred. This witness left his car and went to the scene of the collision where he observed the results of the collision between the automobile and the train and he stated that the operator of the automobile could not have seen the approaching train on account of the nearness of the boxcars (not connected with the moving train) on the north track of the railroad. The evidence in favor of the plaintiff further shows that the agents of the defendant did not comply with the ordinance of the City of Cairo providing for flagging the crossing.
The evidence for the defendant was in direct conflict with the evidence of the plaintiff as to complying with the railroad's regulations as to flagging the crossing and the ordinance of the City of Cairo regarding flagging the crossing.
1. The general and special grounds of the demurrers are without merit.
2. Since the evidence was in conflict, it became a jury question. This case falls within that class of cases where the question as to what negligence and whose negligence is the proximate cause of an alleged injury is a jury question. The jury resolved this in favor of the plaintiff. The evidence is sufficient to sustain the verdict as to the general grounds, and there is no error in the court's refusal to grant a new trial.
The court did not err in overruling the demurrers or in denying the motion for new trial, for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.