Opinion
4 Div. 256.
April 14, 1927. Rehearing Denied June 2, 1927.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Lee Tompkins and O. S. Lewis, all of Dothan, for appellant.
Contributory negligence is a special defense, and must be pleaded with particularity. Southern Ry. Co. v. Shelton, 136 Ala. 191, 34 So. 194; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933. Intestate was entitled to the same protection as a passenger. Central of Ga. R. Co. v. Bell, 187 Ala. 541, 65 So. 835. Pleas of contributory negligence were subject to demurrers, in that they stated mere conclusions without averment of facts in support thereof.
If there is any evidence which tends to establish plaintiff's case, the trial court should not give the affirmative charge for defendant. L. N. v. Lancaster, 121 Ala. 471, 25 So. 733; Tobler v. Pioneer Min. Co., 166 Ala. 517, 52 So. 86; Shipp v. Shelton, 193 Ala. 658, 69 So. 102. The question whether intestate was guilty of negligence was for the jury. A. G. S. v. Bell, 200 Ala. 562, 76 So. 920.
Arrington Arrington, of Montgomery, for appellee.
One, waiting at a railroad station to take passage on a train, who voluntarily gets on the track or dangerously near thereto without stopping, looking, or listening, is not only guilty of negligence, but is a trespasser. A. G. S. v. Bell, 200 Ala. 563, 76 So. 920. Defendant's pleas of contributory negligence were not subject to demurrer. L. N. v. Glascow, 179 Ala. 251, 60 So. 103. Only ordinary care is required of the carrier toward a passenger while waiting at the carrier's station. N.C. St. L. v. Crosby, 183 Ala. 237, 62 So. 889.
We have examined all of the testimony in this case, and our conclusion is that the true story of the intestate's tragic end has been told by plaintiff's witness Adams in a single pregnant sentence, "He just walked down and got too close to the track, and the train struck him." This is, indeed, the plain significance of what all the witnesses said about it.
The defendant was under no duty to place and maintain a guard rail or other warning device in front of its track at the Dothan station, nor was it under any duty to regulate and restrict the width of the pilot beams of its locomotives so as to permit heedless persons to walk within 3 feet of a moving train without suffering harm.
We need not decide whether the failure of defendant's fireman to keep a constant lookout as the engine nearly approached and passed the passenger station was negligence or not, for if he had done so he could scarcely have estimated that the intestate was or would step within the line of danger, and he would have had a right to presume that he would keep out of reach of the train; and, in any case, when he stepped within reach of the pilot beam, nothing could then have been done to save him.
However, if it were conceded that defendant was chargeable with negligence of any sort, it was clearly entitled to the general affirmative charge, as given, under pleas 10 and 12. Those pleas sufficiently showed contributory negligence on the part of intestate, and were not demurrable either as to form or substance. The allegation that intestate "went dangerously close to the track upon which said train was approaching, and in close and dangerous proximity to said train," is not the statement of a conclusion but of a fact. So, also, the statement that this train was "a natural and ordinary train" is a statement of fact that could not be made in any other reasonable way. See the case of L. N. R. Co. v. Glascow, 179 Ala. 251, 257, 258, 60 So. 103.
These pleas were fully sustained by the evidence. The intestate was not merely aware of the imminence of the approaching train, but was face to face with the engine — within a few feet of it — and in a position to judge with accuracy the relative danger or safety of his position. It was his duty to look out for his own safety, and in thus passing out beyond the crowd — who were evidently observing the rule of ordinary care, and keeping within the line of safety — and approaching within 3 feet of the rails immediately in the face of the moving engine, the intestate was guilty of the grossest negligence, as a matter of law, which must bar any recovery for the prior negligence, if any, of the defendant.
Whether the demurrers to several of the other pleas of contributory negligence were erroneously overruled or not, or whether any error was committed in the admission or rejection of evidence, the result of the trial could have been in no wise affected by any of those rulings, and we therefore pretermit their consideration.
Under the issues and evidence the trial judge could not do otherwise than give the general affirmative charge for defendant, and the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS, BOULDIN, and BROWN, JJ., concur.