
    Peters v. Southern Railway Co.
    
      Action against a Railroad Oompam/ to recover Damages for Personal Injuries.
    
    1. Negligence; what constitutes wantonness. — To constitute wantonness, it must he shown that the person charged therewi conscious of his conduct and conscious, from his knowledge of existing conditions, that injury would likely or probata suit from his conduct, and that with reckless indifference to consequences, he consciously and intentionally did some wrongful act, or omitted some known duty, which produced the injury.
    2. Q-eneral affirmative charge; when properly given. — When the facts admitted in a case conclusively establish any fact, mere denial by a witness of the existence of the facts so established, does not create a material conflict in the evidence, which requires a submission of the issue involved to the jury; and in such case it is not error to give the general affirmative charge requested by the party in whose favor the fact is so established.
    3. Action to recover damages; when general affirmative charge properly given. — In an action against a railroad company to recover damages for personal injuries, caused by being run over by a train, where all the evidence in the case shows that the approaching train could have been certainly seen and heard by a person in the position occupied by the plaintiff, in time to have permitted the plaintiff to have escaped from injury, the testimony by the plaintiff that he both looked and listened before going upon the track, and that he neither saw nor heard the approaching train, does not constitute such a conflict in _the testimony as requires the question of the plaintiff's contributory negligence to be submitted to the jury; and the general affirmative charge requested by the defendant in such a case is properly given.
    Appeal from tlie Circuit Court of Jefferson-
    Tried before the Hon. A. A. Coleman.
    Tliis suit, was brought by tlie appellant-,. Joseph A. Peters, against the Southern Railway Company'to recover damages for personal injuries. The facts of the case are sufficiently stated in-the opinion.
    The appeal is prosecuted from a judgment in favor of the defendant.
    Bowman & Harsii, for appellant,
    cited M. & G. R. &. Go. i\ Martin, 117 Ala. 384; Haley v. K. G., M. & B. R. R. Go., 113 Ala. 640; L. & X. R. R. Go. v. Webb, 97 Ala. 308; Growley v. L. & X. R. R. Go., 55 S. W. Rep. 434; Railway Go. v. Letsoh, 55 S. W. Rep. 584; Magar r. Hammond, 67 N. Y. S. 63; Glass v. M. & G. R. R. Go., 9-4 Ala. 587; IT. .4. & B. R. R. Go. v. Robbins, 124 Ala. 117; a a. Pac. R. Go. v. Hughes, 87-Ala. 611.
    Smith & Weatherly and John London, contra.
    
    The testimony of a plaintiff that, he both looked and listened to see and hear a train, which all the evidence in the case, including his own, showed could have been certainly seen and heard by a person in the position occupied by the plaintiff, and that he neither saw nor heard it, does not make such a conflict in the testimony as required the question to be submitted to the. jury. — Arts v. R. R. Go., 34 Towa 154; Marl an cl v. R. R. Go., 16 Atl. Rep. 623; Myers v. R. R. Go., 24 Atl. Rep. 747; Payne v. G. é A. R'. R. Go., 38 S. W. Rep. 308; FT. A. & B. R. R. Go. v. Pennell, 111 Ala. 356; Gen. of Ga. R. R. Go. v. Poshee, 125 Ala. 199; Worth Bir. R. Go. v. Wright, 130 Ala. 419; 30 So. Rep. 360.
    The negligence of the engineer in running at an unlawful rate of speed, or failing to give signals to a person who knows, or is chargeable in law with knowing, that the train is approaching at a high and dangerous rate of speed is not the caima caimans but merely caima sine (¡na non. The canse of a condition upon which the negligence of a person in stepping upon the tract after becoming aware of the approach of the train, and the possibility of checking its speed in time to prevent a collision, operated to and as the sole cause of the injury.
    "Where the carelessness of the person inflicting the injury is antecedent to the negligence of the person injured, and the latter might by ordinary care have discovered the failure of the former to use such care1 in time to avoid the injury, there can he no recovery, because1 the intervening negligence, of the injured person is the direct and proximate cause of his injury. — L. é A. R. R. Co. r. Brown, 121 Ala. 221; Con. of (hi. Ry. v. ¡jamb. 124- Ala. 172, 17(1; Con. of (hi. Ry. r. Cosher., 125 Ala. 199, 218; Shear. & Redf. om Neg.,p. 165, $ 99; Coolev on Torts, 69; 1 Ililliard on Torts, p. 130, § 4; Crawley r. R. & I). R. R., 13 So. Rep. 74; L. é A. R. R. r. Crairford, 89 Ala. 240, 245; Dou.blhi & G. R. R. v. Bhitten/, L. R. 3 Appeal (his. 1155; Davy v. Railway, 11 G. B. I)iv. 213; L. & A. R. R. v. Webb, 90 Ala. 185, 197; Wood r. Pa. R. R., 177 Pa. 306.
    Tin1 evidence showed that tin1 defendant was not guilty of wantonness. — Annision Pipe Works v. Dickeij, 93 Ala. 418; .1. (1. B. R. R. r. Rail, 105 Ala. 599; Birmingham Ry., etc., Co. v. Bowers, 110 Ala. 328; M. & C. R. R. v. Martin, 117 Ala. 367; Benson v. L. & A. R. R., 116 Ala. 198.
   DOWDELL, J.

This is an action to recover damages for personal injuries received hv the plaintiff, appellant here, from being run against and struck by defendant’s locomotive. The complaint contained three counts, the first charging wanton or willful injury, and the second and third alleging simple negligence. In the second count the place of the accident is alleged to have been “at or near Gate City,” and while plaintiff was crossing defendant's track, without averring that Gate City was a city, town or village. In the third count, the place of the accident is alleged to have been in a “certain village, town, or city, known as Gate City;” and in this count it is also averred that the engineer or other person having control of said locomotive, “negligently failed to blow the whistle or ring the bell at short intervals on entering into or while moving within or passing through said village, town, or city, and as a proximate consequence thereof, said engine or train ran upon or against plaintiff while plaintiff was engaged in or about crossing said railway in said city, toivn, or village and plaintiff suffered,” etc. The pleas of the defendant were “not guilty” to'all of the counts, and to the second and third, contributory negligence. On these issues the. case was tried. And upon the conclusion of the evidence, at the request of the defendant in writing, the court gave; the general charge to find for the defendant, and verdict and judgment were accordingly rendered. No questions are presented on the pleadings; the only error assigned being the giving of the general charge.

On the trial the only evidence adduced was that of the plaintiff and his witnesses, the defendant offering none. Tin1 evidence without conflict shows that the plaintiff walked on the track of the defendant at a private footpath in the outskirts of Gate City, a town or village of about twelve or fifteen hundred population, and before he got out of the way of an approaching passenger train was struck by the head-block of the locomotive and injured. That the path led across defendant’s track to the Reed house on the south side, where plaintiff lodged. That besides this house, there were two other houses on that side, about seventy-five or a hundred yards apart. There is neither averment nor proof as to the extent of the use of the path, or to numbers or frequency of persons crossing; nor any averment or proof as to knowledge on the. part of defendant’s engineer or other person in control of, and operating the locomotive, of the use of the foot way or path. That the train which struck the plaintiff was running at the rate of forty-five or fifty miles an hour. A here, is no pretense that the act of running against and injuring the plaintiff was willful; on the contrary the plaintiff’s undisputed evidence showed that the engineer was at the time looking back in an opposite direction, and, therefore, did not see or know of plaintiff’s presence on tlie track in front of the locomotive. And under the undisputed facts, we are unable to see how it can be said that the injury was wantonly inflicted, unless it can be affirmed as matter of law that the speed of fifty miles an hour was of itself evidence of wantonness, and this, of course, cannot be stated as the law. It has been repeatedly held before one can be convicted of wantonness the facts must show that he was conscious of his conduct, and conscious from his knowledge of existing conditions that injury would likely or probablv result from his conduct, and that with reckless indifference to consequences, he consciously and intentionally did some wrongful act, or omitted some known dutv, which produced the injury.—M. & C. R. R. Co. v. Martin, 117 Ala. 367; Benson v. L. & N. R. R. Co., 116 Aa. 198; Birmingham R. Co. v. Bowers, 110 Ala. 328; A. G. S. R. R. Co. v. Hall, 105 Ala. 599; Anniston Pipe Works Co. v. Dickey, 93 Ala. 418; and other cases might he cited. There was no evidence of knowledge on the part of defendant’s engineer, or, as for that matter of any other person on the locomotive, of plaintiff’s peril or presence on the track, or knowledge of existing conditions at the time and place of the accident, that injury would likely or probably result to the plaintiff or any one else from the speed at which the train was being run. The general charge for the defendant under the first-count, we think, -was properly given.

The next consideration is whether the general, charge should have been given on the second and third counts' which counted on simple negligence, and on the issue of contributory negligence, raised by the plea to those counts. The determination of this question is not wholly free from difficulty. We have, held the rule to be that “the affirmative charge should never be given when there is any material conflict in the evidence, or when there is evidence which authorizes a reasonable inference of facts unfavorable to a right of recovery by the party asking the. charge.”—White, McLane & Morris v. Farris, 124 Ala. 470. There was evidence tending to show that the train was being run within the limits of a city, town, or village, without the ringing of the bell, or blowing the whistle, at short intervals, as required by the statute. Code, $ 3440. This was negligence on the part of defendant's employes, and for any injury resulting to the plaintiff as a proximate consequence of such negligence, the defendant would be liable, unless the plaintiff himself was guilty of negligence, which contributed proximately to his hurt. And this brings us to a consideration of the main question in the case, and that is, whether the facts show, without materia] conflict, that the plaintiff was guilty of contributory negligence. The facts without dispute show that the plaintiff was injured while in the act of crossing the defendant’s track along a private footpath which led across said track. While the plaintiff had the right to cross the track without becoming a trespasser in so doing, yet this right was one to be exercised with due care. It must be conceded that if in the exercise of this right in crossing, he had failed to stop, look and listen for an approaching train, he would have been guiltv of negligence in such failure, and for any injury received as a proximate consequence thereof, there could be no recovery of damages, except for wanton or willful misconduct on the part of the defendant or its agent. It is equally clear as a proposition of law that any other, want of due care in the exercise of the right in crossing the track would constitute negligence, and for any injury resulting as a proximate consequence there could be no recovery. Noes the evidence show an exercise* of due care by the plaintiff, or, rather, does it not show, without material conflict, that there was a failure* to exercise due care? The plaintiff, testifying in his own behalf, swore that he, in company with one Hendrix, was walking along the footpath that led to and across defendant’s tracks, and that when they came to the crossing of the railroad, they stopped near the tracks and engaged in conversation, waiting for a freight train on a parallel track, and beyond the track next to, and unon which, plaintiff was lnirt in his effort to cross, which was going east, to pass. That as soon as the freight train had cleared the way by about a car and a half or two car lengths plaintiff proceeded to within eight or ten inches of the rails of defendant’s track, and there he again stopped to look and listen before entering upon the track, and that he looked first to the east up the track, and then to the west- down the track, and neither seeing nor hearing an approaching train, lie proceeded to cross. That he had taken two steps, and was midway between the rails, when his companion, Hendricks, who was behind him, halloed to him to look out. That he looked, and saw an approaching train coming from the east and going west, and that it was right on him, and in twenty-five feet of him. That as soon as he saw it he turned back and did all lie1 possibly could to get off the track and save himself. That he cleared the rails, but was struck by the head-block of the engine. Hendricks, testifying in behalf of the. plaintiff, swore that when lie saw the approaching train and halloed to the plaintiff to look out, it was then 150 feet. away. Another witness for the plaintiff testified to the same effect. The approaching train came around a curve in a cut, and the undisputed facts show that from where, plaintiff testified that he stopped to look and listen, to the end of the curve next to him, in the direction from which the train ivas coming, the distance ivas 2(>0' feet, and that it was in the daytime, about one o'clock in the afternoon, and no obstruction to pnwent plaintiff from seeing the train for that distance. The plaintiff also testified that at the time his sight and hearing were both good. The testimony of all of the. Avitnesses put the speed of the train at from forty-five to fifty miles an hour. The distance between the rails of tin1 track ivas four feet and eight inches. Taking the greatest speed at Avhich the evidence showed the train Aims running — fifty miles an hour — it requires only a simple mathematical calculation to show the time, required for the train to cover the intervening space of 2f>0 feet. It required a fraction over three and a half seconds, and in Aldrich time one ivalking at the ordinary gait of three miles an hour ivould have gone the distance of sixteen feet, which irould have placed him at least nine feet beyond the track, estimating the width between the rails at four feet and eight inches, and including the ten inches, that being the distance from the rail at which the plaintiff stopped to look and listen, before proceeding to cross, making a distance of five and a half feet. This would have put the plaintiff on safe ground. And in the same time, that it required the train to cover the intervening space of 260 feet, one walking at a gait of two miles an hour would have gone nine feet, which would have cleared the track by three feet and six inches, and saved him from collision, and any slower pace than two miles an hour, would not have been •<he exercise of due care in crossing a railroad where an approaching train around a curve could not be seen a greater distance than 260 feet, in this day of rapid transit by the’use of steam power. The plaintiff says when he looked up the track the train was not in sight; then, under the admitted facts as to measurement of the distance, the oncoming train must have been even more than 260 feet away. In the face of these undisputed facts as to speed and distances, can it be said that the mere statement of the plaintiff in evidence, however conscientiously made, that he stopped, looked and listened before entering upon the track, that he neither saw nor heard a train approaching, that as soon as he saw it coming he turned back and did all he possibly could to save himself, raises up a material conflict in the evidence, as to his failure in the exercise of due care and prudence, in his effort to cross? We think not. To have stopped, loitered or lingered upon the track in crossing it, or to have walked with indifferent leisure in crossing, would have been a want of due care, and consequently negligence. When facts1 are admitted which conclusively establish another fact, the mere denial by a witness of the existence of the fact so established, does not and should not create that material conflict in evidence which would require a submission of the issue to the jury. In the case of Artz v. Railroad Co., 34 Iowa 154, 159, in discussing the question before us, it was there said: “But, it isi urged by the appellee’s counsel that plaintiff testifies that he did both look and listen to see and bear the train, but did not; and t-bat tliis testimony shows that be was not guilty of contributory negligence, or that, at the very least, it made that a question of fact for the jury. The difficulty, however, with the position is that the conceded or undisputed facts being-true, this testimony cannot, in the very nature of things, he also true. It constitutes, therefore, no conflict. Suppose the fact is conceded that the sun was shining-bright and clear at a specified time, and a witness hav-. ing good eyes, should testify that at the time he looked and did not see it shine. Could this testimony be true? The witness may have been told that it was necessary to prove in the case that he did look and did not see the sun shine; he may thought of it with, a desire that it should have been so; he may have made himself first believe it was so, and this belief may have ripened into a conviction of its verity, and, possibly, he even may testify to it in the self-consciousness of integrity. But, after all, in the very nature of things, it cannot be true, and hence cannot, in the law, form any basis for a conflict upon which to rest a verdict. A man may possibly think he sees an object, which has no existence in fact, but which it may be difficult, if not impossible, to prove did not exist or was not seen. But an object and power of sight being conceded, the one may not negative the other.” The following cases are to the same effect: Marland v. Railroad Co. (Pa. Sup.), 16 Atl. Rep. 623; Myers v. Railroad Co. (Pa. Sup.), 24 Atl. Rep. 747; Payne v. Chicago, etc., R. Co., 38 S. W. Rep. 308, 136 Mo. 562; Chicago, etc., R. Co. v. Pounds, 82 Fed. Rep. 217. While the precise question before us has not been decided by this court, the principle involved has been tacitly recognized and applied in a number of cases, among which are the recent cases of H. A. & B. R. Co. v. Fennell, 111 Ala. 336, and Central of Ga. R’y Co. v. Foshee, 125 Ala. 199.

Our conclusion is that the trial court committed no error in the giving of the affirmative charge requested in writing by the defendant.

There being no error shown in the record, the judgment of the circuit court will be affirmed.  