Hurt v. Southern Ry. Co. , 205 Ala. 179 ( 1921 )

The defendant's second plea avers that —

"Said plaintiff was guilty of contributory negligence, which proximately contributed to his injury, in this, that said plaintiff before driving upon or attempting to cross said railroad track of defendant company failed to stop, look, and listen for any train which might be approaching said crossing, and if said plaintiff had so stopped, looked, and listened before attempting to cross said crossing that he would not have been injured."

While this plea does not show except by implication that the plaintiff, if he had stopped, looked, and listened, would have discovered the approaching train before he went upon the track, this point was not taken by the demurrer, and the plea was not subject to the grounds stated. However, I do not concur in what seems to be the holding of the majority that, in the absence of an averment that the conduct of the plaintiff was "negligent," the plea would be good. For aught that appears in the plea, the plaintiff, if he had stopped and looked and listened, could not have seen or heard the train. If this was true, his failure to do so could not be said to be proximate contributory negligence. Central of Georgia v. Hyatt,151 Ala. 355, 43 So. 867; Hines, Director General, v. Champion, 204 Ala. 227, 85 So. 511; Schmidt v. Mobile, etc., Co., infra.

Before the plaintiff's failure to stop, look, and listen could be said to be proximate contributory negligence per se, so as to relieve the defendant of the duty of averring that his act was negligent, it must be made to appear that at the time of his effort to cross the train was in such proximity to the crossing as to make it dangerous for him to undertake to cross. See B. R., L. P. Co. v. Gonzales, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Schmidt v. Mobile Light R. R. Co.,204 Ala. 694, 87 So. 181.

Plea 3 does not aver in terms that the failure of the plaintiff to stop and look and listen was negligence which proximately contributed to the injury, and the facts stated do not so show. This was essential to make it a good plea. Central of Georgia v. Hyatt, supra. Construing the plea most strongly against the pleader, as must be done on demurrer, it will be assumed that the stalling of the truck on the track was the proximate contributing cause, and not the failure to stop and look and listen. A fortiori, when the plaintiff attempted to cross the track, the train was such distance from the crossing that it relieved the situation of any element of danger, and but for the fact that the truck stalled it would have passed over the track and out of danger before the train reached the crossing. Central of Georgia v. Faust (App.) 82 So. 36;¹ Id.,203 Ala. 248, 82 So. 345; Hines, Director General, v. Champion, supra.

The plea was subject to the objection pointed out by the fourth and seventh grounds of demurrer, if not others. Pleas 4 and 5 are subject to the same vices.

Plea 5 was subject to the further objection that it undertakes to substitute the alternative averment "or could have ascertained of its approach by reasonable diligence" for an averment that the plaintiff failed to stop and look and listen, and was subject to the third ground of demurrer.

I think the court erred in overruling the demurrers to these pleas, and that the judgment should be reversed.

¹ 17 Ala. App. 96.