Alabama Great Southern R. Co. v. Grauer

SOUTHERN CO. GRAUER ALABAMA GREAT misleading pro- 6. Trial — &wkey;>228(3) may arising better therefrom be Refusal of ters below, that error. held without in the court ceeded with Requested charge long cause if end the is remanded. for prior plaintiff’s to intestate was Reversed, rendered, killed de- and remanded. by been used small fendant’s track had number duty persons, defendant under no to of ANDERSON, X, an,d SAYRE MIL- C. trespassers properly lookout re- XL, LER, concur. comparative fused because indefinite words persons” misleading. “small number of — <&wkey;253(9) ignored 7. Trial Refused evidence. 125) (102 refusing plaintiff’s There no error R. CO. GREAT SOUTHERN charge customary ignored of 830.) (2 GRAUER. Div. a walk- track as use of defendant’s (Supreme Nov. Court Alabama. of way by public at time and of accident. 1924.) Rehearing Denied Nov. &wkey;>267( I) given 8. Trial —Written <&wkey;395 speed ordi- 1. Railroads of —Violation refused in terms written. under wanton count. nance admissible Written should or refused speed sim- limit ordinance Violation of they written, in terms in which should yet ple negligence, count ordi- under wanton by instructions, qualified not be but, oral written with other is admissible connection _ nance susceptible of two construc- where inference as basis for evidence of violation character tions, explanatory charges and requested may be complaint concerning of act given; defining instruction terms is made. objectionable qualifying written as instructions. admitting &wkey;»366(l) 2. Evidence —Manner speed held ordinance as to limit of trains town Appeal Court, County; from Circuit Greene error. without Rice, Judge. Fleetwood mayor Code view of where § damages by wrongful Action for death ordinances identified book book of of town of as L. M. Grauer administrator of town, the estate as testified ordinance in- that it Grauer, trains, deceased, against and identi- limit Hilton Ala- volved mayor plain- signatures clerk, and fied tiff’s read Company. bama Great Railroad Southern section, read and offered to counsel first judgment plaintiff, From a defendant whereupon remainder, coun- defendant’s appeals. Affirmed. in,” said, there was no consider it sel reversible “Just admitting ordi- mayor error in manner of Epes, of the town of as a wit- nance evidence. plaintiff, ness for was shown book which (over objections defendant) he identified customary &wkey;>397(5) 3. Railroads —Evidence town, as the book of ordinances of the held admis- use track known to trainmen kept testified that it was in the office of the sible. mayor, town at time he became usage of tracks Evidence of custom .and time; people, special occasions, that large since it contained the ordi- numbers of engine operating involved, or train known those nance nance well here such ordi- admissible, tracks, if from it over could be in the book at the time of the ac- like inferred that cident; mayor clerk, that he knew the exercised, beings and that human signed following whose names or- time of accident. dinance, signatures and that the shown were signatures &wkey;>397(5) compe- the officers held Railroads —Evidence objection customary public. Over defendant’s the ordinance was to show tent company’s keeping introduced evidence. Evidence of railroad Plaintiff’s counsel steps and deceased’s ordinance, statements read the section first templated was com- use of track before accident 'thereupon, exceptions shows, bill of petent to show use accordance deceased in “said defendant’s counsel in reference public, and. use of tracks section 2 of the ordinance: don’t T care crew knew deceased was that train to anything you about unless bal- do—the before train started. few minutes standing it in reference ance of aon <&wkey;>l33(6) nothing crossing Trial and exclusion to do with this case.’ —Withdrawal —has improper cure error held to (thereupon) for defendant Counsel said: therefore therein. you you ‘If have introduced all of it Where ar- remarks of counsel in put Thereupon plaintiff’s it had in.’ better gument especially that he selfish idea about had right, ‘All counsel said: I’ll read if want it accident because of his little folks who lived in it. have no it.’ county were not within declared ineradi- class Thereupon defendant’s said: ‘Just exclusion, cable withdrawal de- thereof and ” consider in.’ nial of discontinuance because The first section ordinance is fol- error, in view of without withdrawal jury. lows: exclusion Digests Key-Numbered c§=»For topic other oases see same KEY-NUMBER Indexes ALABAMA REPORTS 212 198 C., Haley M. 483, 69; K. mayor v. of 158 Ala. 48 So. and counsel “Be ordained it Ry. 357; v. Ala., 642, Epes, B., it be unlawful A. shall N. that & So. town of for locomotives 21 113 Ala. greater a run at 580; or trains 611, S. A. Guttery, G. So. Ala. 66 189 speed within the an hour rate than six miles of 968; 352, v. Guest, Grauer So. Ala. 34 v. 136 any Epes, corporate engineer gine said town of limits of Ry. 568, 915; S., Sou. Ala. 96 So. A. G. 209 any en- cause shall or conductor who 927; Birming- 309, So. v. Ala. 60 179 greater speed six a than train run at S89; 285, Fox, So. 52 Ala. ham 167 Sou. v. the limits of said town an hour within miles 655, Snodgrass, Ala. 79 So. 201 G.A. S. v. guilty conviction misdemeanor—on of a shall be 30, Heidtmueller, 206 Ala. 125; nor more L. not less than five & N. fined v. thereof shall Partridge, fifty Ala. 191; 136 than dollars.” So. C. of Ga. v. 89 596, 34 So. 927. charges defendant: refused to These 209 tion Ann. tin, Birmingham, for way, cial usual numbers of ually ler, bitrary. & P. were not tiff’s fendant’s frequently, and dridge, dence ante, sible, stitute a the the ant at a Webb, that the trol ceased was of trespassers between of the track before small number of admissible to show the S., 179 Williams, so “A. “A4. The court Where Harsh, long Stokely, Violation of such used at the which the 209 203 evidence .in this 206 Ala. occasions intestate it Co. v. high Harwood, McKinley, McQueen used the track. Cas. If is period is track awarding So. 975. App. the occasion wantonness. Ala. stating you Epes connection with person 36, illegal. under Coleman v. not Cox v. employes, Harsh Eutaw, for train on habitually, 19140, Drennen, on Serivner, trespasser killed, on believe from 486, 454, 29, permissible 568, App. of time station and dangerous the track injury account or at such persons, or time. Sou. longitudinally B. fact, 84 appellant. punitive & Ala. & Co. people killed the defendant’s 1037; solely persons 644, the occasion facts duty R., So. So. case numbers Harsh, complained 175 Pepper, Dominick & prior hours So. 374. General occurred is Yarbrough appellee. L. & N. v. Heidtmuel- I. 191; 66 at or L. ordinance is admis- rate of other injured because of Ala. matters Anderson Standridge regularly damages So. & P. together may fact, B. & show court E. other than evidence near Grauer of the' Willus A bridge 338, cannot E. 942; conduct of de- used persons.” Argument jury’s complained of great Birmingham, a lookout Co., speed.” while that on -likely not time'plain- 57 that of defend- L. N. v. Smith, used v. Forrister, is not ar- R. Co. v. had been v. or habit- B. such passage- well as v. A. that for find for So. v. & Carter, Benen- (?) de- or un- discre- Al-& State, R., State, under using track to be Mar- that con- spe- 876, you evi- Roy, run G. L. nicipal ordinance is nance R. yet pleadings hold prejudicial mitted to the ference of ing lation nance was considered dence admissible, Carter, terially 97 without of former mon, 119, clusion, cited. 653; dicated harmony Cooper, clared or dence. Code Grauer v. ing engines So. dent occurred. admissible, So. such special place could usage S. (in beings THOMAS, [1, ^[3] R. exceptional Ala. R. 915. 920; which under a wanton the admission 65 2] that 206 Ala. 169 Ala. usage and at such of its of would be Co. v. In occasions well kndwn to 308, appeal This court 179 Ala. So. G. S. under the facts of the 208 Ala. complaint. different L. & the town L. & R. On is in Central of the ordinance that with preclude A. permissible complaint error in the the bill the character of the act 153; or trains over the in connection violation, the last presented 315, corporate limits, subsequent R. Co. v. 1907, 3989; AJ. speed N. R. G. S. Williams, evidence, plaintiff. N. uses reasonable 432, jury case the large the authorities 356, L. & exercised, 12 So. 149, However, time, has declared § in evidence of the track at 90 R. limit R. upon No trial R. is simple negligence instant case 60 So. report Epes count exceptions. numbers N. R. R. Co. for review. inferred Co. v. So. Bell, Co., as read made. Ga. if from but injury and Grauer v. A. G. 190 Ala. negligence. 374. rulings relating to, prove extraordinary the basis for an question upon set forth in a the cause was probability) the wanton in the Town Ry. with other evi the ordinance only 209 Ala. 833; of a 200 of Lloyd, 853; tracks at such There was no 805, ease, Heidtmueller, Yarbrough such those'operat that of, that a like Ala. The dictum B., first above manner we did not 53, That ordi it times sustained exception Payne v. Black is not in v. concern 186 was not E. case Elba 568, 96 On 562, human its ex 66 Webb, count only; issue & B. ordi acci Ala. sub- mu vio evi ma So. de in in 76 is is v. v. v. it R. CO. GREAT SOUTHERN v. GRAUER Hilton, peril of the acci that of with at the time taken evidence, other to the safe the custom of dent. likelihood tended It public ty passers-by traveling em the defendant’s to use known to walkway duty permis- ployees makes the —not Co., Ala. sion and a in- A. G. R. circumstance basis for the itself. Nave v. 11 ference, evidence, Lee, cus- Ga. Pac. R. Co. v. C., employees Adm’r, 230; Haley, tom M. was known v. K. & of defend- Co., ant in 21 of the train. So. B. R. 113 R. Adm’r, Guest, Hilton, dfepot agent, 136 R. R. v. the A. G. S. 348, 352, Co. Ry. v. was Co. asked: Southern 477, 483, Forrister, B. S. (cid:127) “Now, get by back to Hilton what was said Ry. Fox, 281, 285, v. So. yourself [the and the deceased] Grauer conductor and Ry. any person v.Co. Southern other in that crowd presence Co. that there in each other were the Alabama Northern shortly killed, on Hilton the was Guttery, 604, 611, A. before he killed.” was 653, 655, Snodgrass, G. R. Co. Co., 125: Grauer v. G. S. The witness answered: 568, 573, [the deceased] “He came to where we error committed There was no reversible myself, were, and said Conductor Garrett and permitting Dr. and others in the witness Reid going the track to Mrs. Hor- that he was down ordinary general of the or use the to declare dinner, ton’s to take told him he wished he could Conductor Garrett by public point the at the in go with him. And Hilton Grauer the time when I asked him to wait and take dinner with me go later, inquiry not an of the and down and he said This was that he was killed. was use of the by’some young dinner, invited for question by there point ladies in track at the keep date, and he mediately his to and and he im- -special occasions, on number us, any left him we didn’t see subject & of discussion in L. N. R. the was R. Co. v. * ** more. When Hilton left he Grauer us Heidtmueller, 206 Ala. the track. started down The Mrs. Horton that appeal (in ease) this Mr. the former 191. In spoke mother, is Mrs. I live Oster’s pertinent ques- together. noted Somerville Justice When he started down the track “density him. jury the local the local afterwards.” killed When he us left the for the of fact tions standing still, started but it soon “general population,” neighboring custom of “walkway,” the “num- the track use” of notoriety” ber,” “frequency, use such This evidence was adduced at the other people. by These observations illustrate the trial, out in and is set the statement of facts. meaning subse- the immediate and the quent justice The learned observed of the evidence opinion that clause generally (Grauer v. A. G. S. R. “spe- occasions,” “special for of the use 918): purposes,” immaterial as cial satisfactorily the “Do facts of the case likely generally. to recur So occasions person probably that some be on the “special purposes” expression by the any time; probable pres- track at that his likely to occur” the time and meant “not responsible ence there known the train- fo expressions question. place men; they intentionally, in These mind, such inadvertently, with the omit declarations of consistent precaution reasonable man must un- foregoing contained deci- this court probably any' derstand will result general usage of a or that evidence cus- sions tom was person advancing front of the pertinent and admissible in a case train?” permitting no error There like this. (Reid, Grauer, certainly competent Le- several witnesses It was to show a use Sawls, Anderson, Smith) grone, by to testi- the track deceased in of the accordance with general fy traveling public customary as to use public, the same responsible of the defendant’s tracks and that members of the train place walkway the time and knew that Grauer crew down the excep- (to admission of In the such evidence the track Mrs. Horton’s or Mrs. Oster’s—who together”) in L. tion declared and defined & N. R.R. “live fewa minutes before the Heidtmueller, assignments train was started. Several challenge was not overlooked. error plaintiff. of counsel for (Miss Richie) A They [4] witness had testified pre- will be considered as accident, general as to the details and family sented counsel. customary public her [5] The suit under the homicide stat walkway punitive damages of said tracks as a awarded, ute. When killed, purpose prevent where Hilton Grauer was statute is to homi question: cides, purpose this was asked know awarding kept steps up, who compensation. rail those whether Authorities collected in Ala Stogner, road did not?” She aiiswered: “The Power Co. v. bama kept steps up.” evidence, 669, 670, seq. preliminary This 151 et ALABAMAREPORTS If parative in court. Refused and for this ant’s ever, matter rested on the use sideration of the the charges requested. oral aas trait. —not to take. that exempt of fact never poration that contained properly reversal because tion appeal against gument counsel, marks of instruction 183 Ala. In v. v. ty,” he had “an Mobile L. 97 So. tiff’s of However, noted versible 199 Ala. 209 Ala. T. R. the ment uance observations and closing argument withdrawn, which weie class since arguments * * * excluded. This [6] There was The was covered argument, is not refused Goodwin, the nature Quattlebaum, Metcalf v. giving court. Davis charge, human excluded whole, written declared defendant’s counsel counsel these above. find It N. Co. v. to exceptions 733; B. T. & P. defendant, his words excluded. appealing that ever 411, 36, my passion or error & R. Co. the be drawn an remarks did not of the court. Moulton v. plaintiff At the conclusion of this employer.” reason was and excluded 95 So. beings when the improper liability little of counsel charge admit one’s 74 So. State, an unfortunate concluding So. 135. especially employeeworking ineradicable cause, St. “a small number of improper, and was withdrawn charge 1-A, plaintiff’s sought 701. It was unavailing. no intervened. Walls, overruling 210 Ala. several may whole taken to 1-Q told folks general to a too common human L. Davis v. error contained in the record. McMillan v. prejudice & F. R. based on said several 657, the Gallasch, the to be were withdrawn Ann. anything charge be live in This exclusion, Alabama Power mistake. indefinite and com the statement Its selfish general jury. During moved a discontin Anderson v. negligence misleading. remark, not plaintiff from the effect 242, made the the motion proper Quattlebaum, effectively refusing intended, come within portions embraced there Cas. 409, refusal The inferences way withdrawal or different from infallible, The is' considered Greene statement for unfavorable opening idea further objected 320, Aiken, 1916A, affirmative prevented “You statement persons,” Gonzalez, we have sought remarks may or defend subject saying under objec Davis no re State, State, How plain or failure coun argu done, mis con- suit. that' will 219, cor and the the ar re to, or it, ler, track at from 'that not sufficient tom so exceptional probability, thereof, the dence ment of the accident terminative ered ability 39 So. plaintiff’s D. G. Co. v. 779; Callaway ten charges rison, given fused overruled. firmed. not the town of to refused not explanatory charges may error. from which inferences the may be, quested Bradley fendant as a time and rate of ignored 1-Q. might be Georgia went signal 1 211 Ala. The case has Affirmed. The ANDERSON, The motion [8] Written ^[7] time of the injury.' whole BOULDIN, JX, objectionable insisted should instructions. Charge to show the without the commission 277. The were for the judgment vel Instructions which define terms held that human instructions. rehearing. (Ala. Sup.) 100 So. the Cotton Co. v. the evidence materially request drawn as to evidence and the was charges non, not be susceptible terms in In L. N. jury, Epes, Assignments cannot subject Cusimano, upon to establish walkway by & Truitt v. in A-4, On again 284, proceeding J., C. explanatory charge given of the circuit extraordinary still 88 So. 135. was excess of the inferences of & R. Co. v. Heidtmuel- a new trial Rehearing. qualified by jury. fact, injury was inflicted was E, However, beings, While consider concur. different refused to of fact in homicide, úse of the track of de qualifying is a material proper. been B. should be general tending proper, argument I-IH, M, Lee, might time of is admissible in evi- liability of two Manderson’s and SOMERVILLE S. McMillan Gay, usage 647;1 the carefully it was held that 196 Ala. aat 534; Boyette only refused be drawn that requested times lookout or to However constructions, was where public oral or the accident and and evidence ordinance declaring court is given Louis are Co. v. Har written of counsel. reasonable count defendant, dangerous show the properly wanton- error 1-N the and de- written, conduct or cus- consid- 599, on the Aiken, Pizitz or re given writ that that mo- are af- re li- at R. CO. v. GRAUER SOUTHERN GREAT (there now, putting ferry say','evidence in down below” ness; of occasions’ is to statement); and likely reasonably prob- was. no to this last or that are not asked, know the witness was then of the accident the time able to recur up there or not automobiles traveled whether is illustrated This not .sufficient. (meaning ac- Case, supra, daily before that?” as the Heidtmueller vening materially cident), sir; replied, “Yes, seen I have closing regular aat hour of school or in skiff before automobiles cross over there the from the hour of different boy Counsel was killed.” homicide not sufficient Heidtmueller establish a custom plaintiff inquiring then then he stated at the time of homi- “up afterwards,” boy to the time this killed there said: cide. court witness, “would and asked upon assump this case “While we treat Epes tributary or not who tion and while way, that killed train No. child was this ** * there, brought cotton traded passage using as walk its track * * any people sort *.—were there of that he understood to hold wish to do Epes sufficient es habitually the evidence that would visit tablish that the child was while killed boy time this an- killed?” ordinary way, using on which swered, “Yes, Epes.” I have visit seen few establish such a the and relies to “Well, many asked, He would trade in was then few use as to defend Epes and sold came there part agents on the of its ant with wantonness things?” their cotton answer- R. R. Co. v. servants. Southern ed, “Well, hundreds; I reckon 304], have seen supra therein cited.” cases [179 Thereupon thousands of them.” the witness question was asked the to at the adverted Appellant special invokes consideration of outset, “Well, they ever use the did exceptions. They may rulings be illus- going up to river tracks the time this to and from the assignments number- strated ed error boy answered, killed?” and question, “Well, The and 129. did “Yes, sir; many good of them I have seen a railroad tracks in ever use the bridge in and come and see the river. ter is the water was walk to the end up boy down and was the river to the time this Especially killed,” when wa- answer, “Yes, sir; I have high go to see numbers of them down good many of them come seen a in and walk river.” that the There was no evidence bridge down to the end and see the river. high injury. of the at the time Especially high' is water numbers when the last bill As to the of answer it is recited river,” go down them to see went exceptions: “Defendant moved to exclude the the latter use at at and custom or before grounds assigned this answer on the same homicide. It is time of the true objection question, mo- phrase witness, in the to the answer of overruled, “Especially high river,” tion the court then and there and the defendant the water is numbers duly excepted.” grounds go The might to see them down question specific motion, sep- of were “that have arating excluded on been irrelevant, illegal, part immaterial called first it from the of the answer. confined, testimony, approxi- motion made. Such was not day accident, ap- Assignment mate time and the error referred in brief accident, place the predicated proximate question, called for No. is on the at times other than the use know whether or trav- automobiles accident, up that,” approximate answer, eled of .track there before .and places “Yes, sir; seen for the use than have automobiles cross over approximate place boy there in killed.” This skiff of the accident.” the time part interpreted reversible error shown. That must No previous questions have, illustrated of good many answer follows: “I seen and and previous tending them in and walk down answers come bridge river,” existing usage end and see the re- at the sponsive the time in and material to the issues as had permitted testify again been have had have indicated. We examined he' seen negroes decisions, who lived on “this side and Grauer of the river the Heidtmueller go get up foregoing across the in skiffs river is not in therewith. conflict bridge up say rulings railroad at the sufficient several come It is to. Epes”; considered, good purpose there an no that time been county discussing automobile road on the Greene side will conserved the same in be. landing; to the skiff of detail. trial, “they working application rehearing the roads overruled.

Case Details

Case Name: Alabama Great Southern R. Co. v. Grauer

Court Name: Supreme Court of Alabama

Date Published: Nov 6, 1924

Citation: 102 So. 125

Docket Number: 2 Div. 830.

Court Abbreviation: Ala.