
    Burns v. Louisville & Nashville Railroad Company.
    
      Action against Railroad Company to recover Damages for Personal Injuries.
    
    1. Contributory negligence; duty of person approaching track of ' railway. — It is the duty of a person approaching the tracks of a railway for the purpose of crossing it, to stop .and look, and if necessary, to listen for approaching trains; and where there is an omission of this duty, followed by injuries re-suiting from a collision with a train or locomotive or car, while attempting to cross over the track, the person so injured and so failing to discharge the duty resting upon him, is, as a matter of law, guilty of contributory negligence which precludes his recovery of damages in an action which counts upon the simple negligence of the railroad company or its employes.
    2. Same; same. — Where a person approaches a railroad track for the purpose of crossing over it, his duty to stop and look and listen must he performed while the person is so near to the track a-’-d so immediately preceding his effort to cross over the track, as to remove any danger from a train coming upon the crossing between the time he stopped, looked and listened and his attempt to proceed across the track; and though he stopped at the track, if he lingers there after looking and listening until a train not in hearing or sight when he stopped, looked and listened, has, in the meantime, come upon the scene and collides with him when he does attempt to cross, he is guilty of contributory negligence.
    Appeal from tlie Circuit Court of Jefferson.
    Tried, before the Hon: A. A. Coleman;
    This action was brought by the appellant, Hubert A. Burns, against the Louisville & Nashville liailroad Company, to recover damages for personal injuries alleged, to have been sustained by the plaintiff by reason of the negligence of the defendants employes.
    There is but one assignment of error which is predicated upon the courts giving a written charge at the request of the defendant, to the giving of ’which charge the plaintiff duly excepted; and the facts necessary to an understanding of the decision on the present appeal in reference to this charge are sufficiently set forth in the opinion.
    There were verdict and judgment for the defendant, and from this judgment the plaintiff appeals.
    W. H. Denson, for appellant,
    It was open' to the jury on the whole evidence to find that the exercise of due care by the defendant would have avoided the injury. — Martin? s case, 131 Ala. 269; Foshee’s case, 125
    
      Ala. 217; Lamb’s case, 124 Ala. 176; Ives’ case, 144 U. S. 408; Mils’s case, 13 S. W. Rep. 951; 2 Thompson on Law of Neg. (late ed.), §§ 1598, 1742, 1748.
    Walker, Tillman, Campbell & Walker and W. 1 Grubb, contra,
    cited Central of G-a. R. R. Co. v. Forshee, 125 Ala. 199.
   • DOWDELL, J.

This is an action to recover damages for personal injuries received by the plaintiff while attempting to cross the track of the defendant railroad Company'at a public street crossing within the corporate limits of thé city of Birmingham. The complaint contained four counts, two of which counted on simple negligence and two on wanton or intentional Avrong. The latter two, hOAvever, being the second and fourth counts, Avere before the conclusion of the trial Avithdrawn by the plaintiff. The pleas to the remaining two counts, being counts on simple.negligence, were the general issue and contributory negligence.. On these pleas issue .was taken and the trial had. There is but- one assignment ..of error, and that is the giving of the following written charge requested by the defendant: “If the jury believe, from the evidence that the plaintiff was injured at Avenue E in crossing the defendant’s railroad, and if the jury further believe that there were no cars at the time of his injury on the southbound track, and the train that struck plaintiff was approaching on the northbound track, the plaintiff Avas guilty of contributory negligence and cannot recover in this action.”

.That there was evidence tending to support every fact hypothesized in the charge is clearly shown by the record. The only question, therefore, presented for consideration, is whether the facts hypothesized, when taken in connection with other undisputed evidence in the case, ■were sufficient to authorize the court upon the written request of'the defendant, to charge as matter of law, that the plaintiff was guilty of negligence, which contributed proxhnately to his injury. The crossing at which plaintiff claimed that he was struck and injured by the passing train oí the defendant company, was at Avenue E. The undisputed evidence shows, that at this place there were four tracks of the defendant’s railroad which crossed the avenue. The tracks all ran in a northerly and southerly direction. The two easterly tracks were the main lines of the defendant’s road, and the two westerly, were side tracks where cars were stored. The track furthest east was the “northbound” main line track, and the track next to it west was the “southbound” main line track. All of the four tracks at this crossing ran parallel Avith each other. The plaintiff was crossing the tracks on foot from west to east. The distance from the east rail to the first side track going from east to west, to the west rail of the “northbound” main line track was 17.2 feet, and the distance from the east rail of the “southbound” main line track to the west rail of the “northbound” track was 9.6 feet. Cars were stored on the side tracks which came up to the crossing, leaving a space sufficient for vehicles to pass between them in making the crossing. These cars obstructed the view, so that one going across from west to east could not see an approaching train from the south, coming from the direction of Montgomery and going north into Birmingham, until he had cleared the east side track. After clearing the tracks upon Avhich the cars Avere stored, the view of the “southbound” and “northbound” main line tracks was open and unobstructed in southerly direction towards Montgomery 900 feet, and in a northerly direction towards Birmingham 1,000 feet. The plaintiff’s testimony is that he stopped in the middle of the easterly side track and looked and listened, but that his view to the south Avas obstructed at this point by the stored cars, that from this point he went three or four steps looking the AAthile in front of him, when he stopped the second time within eighteen inches of the rail of the track on which the train was that struck him, and looked towards Birmingham, and before he could look in the opposite direction, he was struck by the pilot beam of a locomotive coming from the direction of Montgomery and northbound. The plaintiff was not deficient in his sight or hearing, and the accident occurred in open daylight. The plaintiff testified that he was familiar with the pilot beam of locomotives and knew that they extended over the track, from fifteen to thirty inches, according to the size of the locomotive. On the facts hypothesized in the charge, the train that struck the plaintiff was on the “northbound” track, which was the track furthest east, and there were no cars on the “southbound” main track. Prom this, on the undisputed evidence, the plaintiff passed over an intervening space of fifteen feet from the point where he first stopped, to the point where he last stopped and was struck, in which his view of the track on which the train was approaching was open and unobstructed for a distance of nine hundred feet in one direction, and a thousand feet in the other. 1-Iis failure to stop at a point of safety within this space, and to look and listen before attempting to cross, or placing himself in dangerous proximity, so near to the track as to be struck by a passing train, was per se negligent, and may be so affirmed as matter of law. In the case of the Central of Georgia R. Co. v. Foshee, 129 Ala. 213, in discussing the duty of one traveling on foot, to stop, look and listen before crossing a railroad track, it was said: “It is equally clear on principle and authority that this duty must bp performed at such time and place with reference to the particular situation in each case as will enable the traveler to accomplish the purpose 'the law has in view in its imposition upon him. He must stop so near to the track and his survey by sight and sound must so immediately precede his efforts to cross over it as to preclude the injection of an element of danger from an approaching train into the situation between the time he stopped, looked and listened, and his attempt to proceed across the track. If he stops so far from the railway as that a train which could not he seen from that point could and does reach the crossing by the time he has traversed the intervening distance, and gotten on the track, he negligently contributes to the resulting collision and injury.” And again in the same case, page 214, it was said: “There is evidence from which it might be inferred that she [referring to plaintiff’s intestate in that case] did not see or hear the train, and, without stopping to look and listen at the proper time and place, or at all for that matter, went upon the track in ignorance of its approach. That by stopping and looking and listening she could have ascertained that the train was approaching and was dangerously near is entirely clear on the evidence. Indeed, it is not possible to conceive that any foot traveler need or could with proper use of his senses ever go upon a railway in ignorance of the approach of a train, sufficiently near to strike him before he crosses over it. No curve in a deep cut that a train can be operated upon, can be so acute as to deprive him of the opportunity while standing beside, the track to refrain from attempting to cross in front of it. On this aspect, of the evidence the intestate was as a matter of law unquestionably guilty of negligence in attempting to cross the track without stopping and looking and listening for the train that killed her.” It is perfectly clear from the undisputed owidence as to the distances between the several trades, and as to the unobstructed view after'clearing the tracks upon Avhich the cars Avere stored, to one going from Avest to east as the plaintiff Avas going, that if there Avere no cars on the “southbound” main line, and this fact is hypothesized in the charge, there Avas a “proper time and place” in the intervening space between Avhere' the plaintiff first stopped, looked and listened, and the point at AAhich he was struck by the train, AAhere he could, by the exercise of ordinary care in the use of his senses, have knoAvn of the approaching train and have avoided the accident. It is equally clear that in his failure to stop, look and listen “at such time and place with reference to the particular situation” as Avould have enabled him to accomplish the purpose the law has in view In imposing this duty upon him, he Avas guilty of contributory negligen ce.

The evidence further Avas Avithout dispute, that the presence and peril of the plaintiff at the time of the injury, was unknown to defendant’s agents in control of the train, and therefore there is no room for the application of the principle of responsibility for negligence occurring subsequent to plaintiff’s negligence. Onr conclusion is that the court committed no error in the giving of the charge, and the judgment will be affirmed.  