The Montgomery advertiser., 1903-03-27
BIRMINGHAM SOUTHERN RAILROAD

| | co. V. POWELL.
 Action for negligence.-Appeal from the | City Court of Birmingham.
 l. Assumption of risk; no defense to wanton or intentional injury-In an action | to recover damages for personal injuries | where the complaint contains a count which charges that the injuries were | caused by the wantonness or intentional l an assumption or risk on the part of the plaintiff constitutes no defense to such a count and is demurrable.
 z. Railroads; statute prescribing duty as to railroad cars applicable to street railroads. operated by electricity.-The provision of the statute prescribing the duty of railroads whose tracks cross each other, as to such crossing Code. Section erated by electricity.
 3. Statutory provision as to railroad crossing; what required of employes.-Un- der the statute imposing the duty upon upon tracks of two railroads which cross each other Code, Section BAD 1t is nec- essary not only that they should require the trains controlled by them, that they
 hundred feet of the crossing before at tempting to cross. but that they must
 not cross until. by the exercise of the highest degree of diligence, they have as- the conductor or engineer of train or the conductor or motorman of an electric street car on one of the intersecting roads proceeds across the intersecting track without knowing. after the exercise of the highest degree of diligence. that the way Is clear, he Is guilty of negligence
 I. same; right of persons in control or car to presume compliance with stat ute.-Although an engineer or conductor on the train of a railroad company, or the motorman or conductor of an electric street railway company, when approach ing crossing where there is an intersec- Hotl~ En1 -A. t's presume that the employees of the
 train upon the intersecting road will stop their train as required by law, 1t is nev-
 ertheless his duty. after having compiled with the statute himself, to keep a look
 out for approaching trains: and if in the face of facts reasonably indicating that
 the train approaching on the intersecting
 road Is not going to stop at said crossing,
 ne attempts to cross. he thereby becomes ohargeable with negligence.
 D. Negligence. when question of wan tonness or intentional injury should be
 submitted to jury.-1n an action against
 railroad company to recover damages Tor personal injuries, it was shown that the plaintiff was a conductor on a car op- erated by an electric street railway com pany, and that the injury was received by tween the car on which he was conduct or and train of cars operated on the derendant's tracks, which collision occur red at crossing of the tracks of the two
 
 or Birmingham; that the defendants em- ployes in charge of its train were, at the tme, making what is called a "drop
 switch the said train being composed of several loaded cars. and that nine of the cars were cut loose from the engine and
 permitted to roll by their own momentum down an incline to said crossing; that the car on which the plaintiff was con ductor and which was run into by the defendants train of cars, stopped within aoout nfteen feet of the crossing and
 after having SO stopped proceeded to cross, and when on said crossing in front | or the approaching cars on the lntersect- ing road, said electric car stopped by req | son of the failure of the electric current that the motorman of the electric car abandoned his post and the plaintiff went to 1t and attempted to work the control Ter with the intent of backing the car of the crossing, and while so engaged the collision occurred producing the injury, | The evidence for the plaintiff tended to snow that there was no brakeman or oth- CT person on the loaded cars when they were cut loose from the engine and with out any one to manage or control them said cars were allowed to run down grade at speed of fifteen miles an hour across the track of the electric car line. in a public street of city: that he con ductor of the defendants train, who cut
 the cars loose, was familiar with the crossing, and he and the employees knew that the electric cars were running on said few minutes in the day. Held: That un- der such evidence it was proper to sub l init the question of waRtonness or wiIlful
 or intentional wrong to the jury.
 Opinion by Dowell, J.