114 Ala. 587 | Ala. | 1896
Action against the Railroad Company for personal injuries. The case was tried upon the general issue to the second and fifth counts of the complaint—
There was no merit in the demurrers to these two counts. The second shows sufficiently that the defendant’s servants or agents committed the injury wantonly, willfully or intentionally ; hence it is not material that it also shows that plaintiff was wrongfully on the track.
The fifth was, apparently, treated, on the trial below, as being of the same character, and there are expressions in many of our decisions,'importing that such-wrongdoing as is charged in this count against the servants of the defendant company, in operating the train, is the equivalent of wanton or willful misconduct, and the 1‘ulings of the court below were no doubt influenced by these expressions, but upon examination of several of our recent rulings, the principle will be found to have been declared • that to constitute wantonness or willfulness on the part of the servants, in their omissions to use proper preventive effort after discovery of the peril, they must have been conscious, at the time, that they were .omitting to use the means at hand which the circumstances reasonably required to avert the injury. The omissions may have resulted from the want of skill, or other unintentional causes, which, in law, would have constituted negligence, or a want of due care, yet exculpating the servants from that conscious or intentional wrong which is equal to wantonness or willfulness. — G. P. Railway Co. v. Lee, 92 Ala. 262; L. & N. R. R. Co. v. Markee, 103 Ala. 160. This count only charges the failure to exercise due and reasonable care, after the discovery of the peril, which, in view of the principle above stated, is no more than a charge of negligence. The count is good, as one charging negligence merely. It must be observed, however, that under the count, as framed, proof must be confined to the inquiry whether there was a failure to exercise due and reasonable care, after discovery of the plaintiff’s peril; that being the character of negligence charged.
It results from what we have said, that charges 2 and 4, requested by the'plaintiff, were imjproperly given.
It was not denied that one of the defendant’s trains ran over and injured the plaintiff; thus the only contro
Under the fifth count, as we have said, the issue involved simple negligence merely, raising only the question whether the servants used due and reasonable care to avert the injury after discovery of the plaintiff’s peril, the use of which would have prevented the injury. There was no plea of contributory negligence to this count, so that the question whether plaintiff was rightfully or wrongfully on the track does not arise.
The plaintiff, when injured, was about nine years of age. His little sister, three years of age, was with him and was killed.
It became a question on the trial, how far from the place of injury, (which was identified by testimony as being on or near the end of a certain trestle), these children could be seen on the track, and recognized as being children, from the direction the train came. The plaintiff’s father was permitted to testify to an experiment made by him and others about a month after the injury. They placed the little boy (plaintiff) and one of witness’ little- girls, a size larger than the one that was killed, on the trestle and left a boy 17 years old with them, and went down the track 700 yards, and from that point they could see objects on the trestle. They then walked toward them 200 yards, and stopped, and there saw the two children on the trestle; and the witness testified that he could tell that they were children a distance of 500 yards. The other persons who were with the witness, testified to substantially the same. This testimony, and the questions which brought it out, were objected to on the grounds, that they were irrelevant, and that the experiment was made out of court, when defendant was not present, and because the conditions were not shown to be the same as on the occasion of the accident. Exceptions were duly reserved to the overruling of these objections.
The writer was disposed to think the experiment, the evidence of which is objected to, could safely and properly be regarded as a practical method of shedding some legitimate light upon the inquiry whether or not these children, and the fact that they were children, could have been discovered by the engineer in time to stop the train before reaching them by the exercise of due and reasonable care, leaving to the jury to consider such differences of conditions, under which the injury and experiment occurred, as the case ma.y disclose, and to make due allowances for such differences ; but, upon due consideration, we are of opinion that such evidence will not furnish, or aid in furnishing, a safe guide to the jury in the determination of the question whether the engineer exercised reasonable care to prevent the injury^ after he discovered the plaintiff’s peril, or even before such discovery, if that were an issue in the cause. The conditions are too variant. — Tesney v. The State, 77 Ala. 33. The physical and topographical facts surrounding the injury, and the place of the injury, should be put before the jury, leaving them to draw just conclusions touching the issue.
There was no error in excluding the statement of the witness, Cullen, who was a passenger on the train, that he knew that the brake was put on because of the sudden stopping of the train after the whistle was blown. He had already testified that the engine whistle was blown several times, in quick succession, and immediately following the blowing, the 'train began to slacken its speed so suddenly as to throw him forward in his 'seat, in the passenger coach. The statement excluded was the mere conclusion of the witness from these facts.
The remaining questions arise upon the giving and refusal of instructions, and motion for a new trial. The general charge was requested by the defendant, and its refusal is now earnestly insisted upon as error.
The testimony, additional to what has been indicated, necessary to be specially stated is, substantially, as follows : The injury was committed by a north bound passenger train running about 40 miles per hour, from three to four o’clock in the afternoon, on or near the north end of a trestle about 55 feet in length and 17 feet deep. About 270 yards south of the trestle there began
Tiny Paine, a sister of plaintiff, testified that she was at her father’s house the day of the accident, sitting in the hall, and saw the train pass, and heard it blow several times like there was something on the track; it blew just as it went out of her sight, which was’at the south.end of the cut; that they did not blow but just the one “spell of blowing,” and it was about three o’clock in the afternoon. On cross-examination she stated that she was about a quarter of a mile from the train; that it blew just as the rear coach went into the cut out of her sight. Two other witnesses testified to hearing the whistle.
The foregoing comprehends the plaintiff’s case.
The engineer testified for the defendant, that when he came into the cut, on the top of the hill, he saw something on the track but could not tell what it was, and
This was the substance of the defendant’s evidence. We think it is manifest, under the evidence, without entering upon a discussion of the reasons for the conclusion, that it was for the jury to infer at what point the engineer discovered the presence of the children on the track, and the peril they were in, and whether or not the exercise of due care on his part, after such discovery, would have avoided the plaintiff’s injury, and hence, of course whether or not he exercised such due care. The court not being able to say that there was no evidence, at all, from which it might be legally inferred that the engineer was derelict in the respects mentioned, it necessarily falls within the province of the jury to draw the proper inference — that which the evidence, rationally and impartially considered and acted upon, reasonably induces the mind to draw. The general charge could not, therefore, have been properly given for either party.
We see no valid objection to the first charge given for the plaintiff.
We have already stated that charges 2 and 4 were improperly given.
As there was no plea of contributory negligence to the fifth count, we see no objection to charges numbered 3 and 5 given for plaintiff.
The withdrawal of the counts of the complaint to which we adverted, should have appeared by an entry upon the record proper, and not left to be shown only by the bill.of exceptions as was-done, and we will not be understood as holding that they and the pleas to them, with the rulings on both, are not now legally before us for review. We assume, however, that the omission will be supplied on another trial, and as the judgment must be reversed on other grounds, we have treated the case as if the proper entry had been made, and will not consider the questions raised on those counts.
Reversed and remanded.