“[W]e are of opinion after viewing the photographs introduced in evidence showing the tracks and the location of the box cars standing thereon at the time, that plaintiffs testimony that he stopped, looked and listened before going upon the tracks, creates no material conflict in the evidence.”
How later courts described this case
- “[W]e are of opinion after viewing the photographs introduced in evidence showing the tracks and the location of the box cars standing thereon at the time, that plaintiffs testimony that he stopped, looked and listened before going upon the tracks, creates no material conflict in the evidence.”
- photographic evidence clearly revealed no obstruction of driver’s sight or hearing
Written by the judges who cited it.
The opinion
On Rehearing
In the application for rehearing it is strenuously argued that we are in error in holding “that if no sharp blast of the whistle was blown after discovery of plaintiff’s peril, then this is sufficient to make out a case against the defendant on subsequent negligence.” It is further argued in brief: “The court has not discussed the evidence with a view to determining whether there was, under the evidence, a case of subsequent negligence under which plaintiff could recover, and our whole purpose in appealing this case was to get the court to pass upon this question as well as the question of contributory negligence.”
It is insisted that since the testimony of the fireman and brakeman was that they first saw the automobile when it was 50 feet from the main track, and the train was 20 feet from 17th Street and traveling at the rate of 15 miles per hour there was only a second of time after the trainmen acquired knowledge of plaintiff’s peril until the collision occurred, and this was not sufficient evidence to show that the trainmen had time or opportunity, by giving a sharp blast of the whistle, to prevent the accident, “that in addition to proving the actual knowledge of peril and the failure to give a sharp blast of the whistle, evidence must further show that there was sufficient time between the acquiring of knowledge of peril and the collision to have enabled the defendant’s trainmen to avoid the collision.”
In Mobile Light & R. Co. v. Gadik, 211 Ala. 582 , 100 So. 837, 839 , quoted with *370 approval in Gulf, M. & O. R. Co. v. Sims, supra, the court said-“If the motorman sees he cannot stop his street car short of the point of collision, the giving of warning .signals become more imperative.”
“In the case at bar there was evidence that the motorman saw plaintiff’s automobile when 25 to 40 feet from the point of contact. There was evidence that the motorman did sound the gong and otherwise strive to prevent the accident, and that plaintiff ran his car into the side of the street car; but there was evidence that no signal of warning was given. Without discussing other features of the evidence, this feature made a case for the jury on negligence after discovery of peril. The affirmative charge on count 1 was properly refused.”
The plaintiff testified from the time he restarted his automobile after stopping he was in low gear and. traveling at five miles per hour. The fireman and brakeman testified the automobile was running from 30 to 45 miles per hour and its speed was never reduced. To-paraphrase and use some of the language of the court in Southern Ry. Co. v. Sherill, 232 Ala. 184 , 167 So. 731 , the jury may have reasonably inferred from the evidence that a timely .signal after discovery of plaintiff’s peril, might have saved his entrance upon the track, or being thereupon, hastened his departure from the track.
On the question of the denial of a new trial, “the correctness of the verdict is strengthened when the presiding judge refuses to grant a new trial, and the verdict should not be set aside because it may not correspond with the opinion of the court as to the weight of the testimony or because it is against the mere preponderanee of the evidence.” Gulf, M. & O. R. Co. v. Sims, supra [ 260 Ala. 258 , 69 So.2d 454 ]; Southern Railway Co. v. Hughes, supra.
Application overruled.