Opinion
6 Div. 854.
June 19, 1919.
Appeal from Circuit Court, Jefferson County; C. W. Ferguson, Judge.
Weakley Rice and W. A. Denson, all of Birmingham, for appellant.
Percy, Benners Burr, of Birmingham, for appellee.
In the recent case of Birmingham Southern R. R. Co. v. Mary E. Harrison, Adm'x, 82 So. 534, wherein the cause of action grew out of the identical collision here involved, and the pleadings and testimony were substantially the same as here, we considered and determined the main questions presented by this appeal.
Ante, p. 284.
Pretermitting any decision as to the duty of the defendant railroad to establish an automatic gong at this particular crossing in the first instance, we held that, having so established it, and allowed travelers who were aware of it to rely to some extent upon its operation as a warning to them in crossing, it was defendant's duty "to keep it in a working condition, or else give notice in some way that it was out of repair or was not working, and its failure to give warning was a circumstance for the jury as bearing both upon its negligence and the conduct of the driver." It was further held that —
"On failure of the device to act, in the absence of other sufficient notice or warning in lieu thereof, the obligation to rebut the prima facie presumption [of negligence] thereupon passes to the railroad or operating company so using or relying upon the signal."
Though we think the weight of the evidence was to the contrary, yet some of the testimony would have supported a finding by the jury that the usual signals by bell and whistle were not seasonably given by the enginemen upon approaching the crossing. It was therefore prejudicial error for the trial court to eliminate from the consideration of the jury, as a basis for their verdict, the question of defendant's negligence in respect to the maintenance in working order of the automatic gong, as was done by charge "b."
As an abstract proposition, it was not incumbent upon defendant to keep and maintain this gong at this crossing, since other modes of warning might equally suffice. But, having so established it, and educated travelers to rely upon it, it was defendant's duty either to keep it in efficient operation, or to give notice that it was not in working order.
Charge 11 was a correct statement of the law.
For the error in giving charge "b" to the jury, the judgment must be reversed, on the authority of Birmingham Southern R. R. Co. v. Harrison, supra, and the cause will be remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.