Opinion
8 Div. 436.
April 27, 1922.
Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.
Eyster Eyster, of Albany, for appellant.
The court erred in overruling the demurrers as to misjoinder of the party defendants. 205 Ala. 355, 87 So. 603, 13 A.L.R. 1020; 206 Ala. 110, 89 So. 376; 250 U.S. 135, 39 So. 502, 63 L.Ed. 897. It appears without dispute that the accident was purely the fault of the defendant. (C.C.A.) 266 Fed. 969; 78 Me. 346, 5 A. 771; 49 N.J. Law, 473, 9 A. 680; 172 Ala. 584, 55 So. 218; 205 Ala. 70, 88 So. 133.
J. N. Powell, of Falkville, and Sample Kilpatrick, of Hartsells, for appellee.
The demurrers were not passed upon by the court, and hence nothing is presented for review here. Counsel discuss other assignments of error, but without citation of authority.
At the time of the accident in which plaintiff (appellee) received his injures, December, 1919, the Louisville Nashville Railroad was being operated by the Director General of Railroads as agent for the United States. The railroad company was therefore improperly joined. Charlton v. A. G. S. (Ala. Sup.) 89 So. 710. There was a demurrer taking this point; but we cannot find in the record a responsive ruling by the trial court. However, for this reason, and as well that to be stated in respect to the case against the other defendants, the railroad company was entitled to the general affirmative charge.
As to the facts: It may be conceded that the plaintiff stopped before going upon the track. His testimony is that he looked, or, as he put it at other times, "glanced" up and down the track before going upon it. But it is undisputed that, before reaching the track on which he was struck by defendant's train, he crossed three other parallel tracks, the view along which was unobstructed, and that a train approaching the crossing from the north, as did the train by which plaintiff was injured, could be seen for a mile before it reached the place. Nevertheless, plaintiff, in full possession of his senses, in broad daylight, and in surroundings with which he was entirely familiar, drove his automobile upon the track so close in front of the train, and there stopped, or was in the act of stopping — or it may be that his automobile stopped or slowed down, nearly to the point of stoppage, for some cause beyond his control — so near to the train that no effort on the part of the trainmen could have avoided the catastrophe. All this plaintiff virtually admitted on cross-examination. Plaintiff may have "glanced" up the track, but, on any view of the evidence, it is clear beyond dispute that, had he "looked," he would have seen the approaching train in ample time to have avoided the accident by stopping his automobile and waiting for the train to pass (Peters v. So. Ry. Co., 135 Ala. 533, 33 So. 332), and it counts nothing against this view that the space between the parallel street and the first track was piled with lumber, for between the edge of the street and the track on which plaintiff was struck, three other tracks were laid. Likewise, he may have listened, but it is clear beyond controversy that, had he stopped the noise of his engine — for his duty in that matter see Davis v. Chicago, etc., Co., 159 Fed. 10, 88 C.C.A. 488, 16 L.R.A. (N.S.) 424; Chicago, etc., Co. v. Biwer (C.C.A.) 266 Fed. 965 — he would also have heard the train in ample time to have conserved his safety. Quite a number of witnesses — not engaged in the perilous business of crossing four railroad tracks — heard the approaching train, and so might plaintiff have heard had he exercised due care.
On the whole evidence, including that of plaintiff it appears as matter of law that plaintiff was guilty of contributory negligence in going upon the track as he did, and that his failure to make efficient use of simplest precautions was the proximate cause of his injury, and, therefore, that defendants were entitled to the general charge. L. N. v. Turner, 192 Ala. 392, 68 So. 277; Hines v. Cooper, 205 Ala. 70, 88 So. 133; L. N. v. Williams, 172 Ala. 560, 55 So. 218; Rothrock v. A. G. S., 201 Ala. 308, 78 So. 84.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.