64 So. 592 | Ala. | 1914
This is the second time this case has been before this court. On the first appeal it was held that, under the facts set out in the bill of exceptions, the defendant, the Central of Georgia Railway Company, was entitled to the general affirmative charge in its favor. It may be said, in a general way, that the plaintiff’s intestate, while walking along the defendant’s roadbed in the direction of Ozark, was struck by a locomotive of the defendant coming from Ozark and sustained injuries from which he died. It may. also be said, in a general way, that, on former appeal, this court held that under the pleadings and the facts the plaintiff could not recover except upon the theory of subsequent negligence on the part of the defendant, and that all the facts showed that the plaintiff was not entitled to recover upon that theory. This court, therefore, held that, under all the evidence, the defendant was entitled to the general affirmative charge in its favor. — Central of Georgia Railway Co. v. Blackmon, 169 Ala. 304, 53 South. 805.
In the instant case, count 3 of the complaint was subject to the demurrer which the defendant interposed to it. — Southern Railway Co. v. Hyde, 183 Ala. 346, 61 South. 77. When a count charges wantonness and willfulness in general terms, and then sets up the facts upon which the charge of wantonness and willfulness is predicated, the facts set up must, in themselves, show wantonness and willfulness. The facts set up in count 3, in themselves, do not sustain the charges of wantonness and willfulness set up in the count. — B. R. L. & P. Co. v. Jaffe, 154 Ala. 548, 45 South. 469. The plaintiff:, however, under count 4 of the complaint, properly stated a cause of action for wantonness and willfulness, and he suffered no injury by reason of the disappearance of count 3 from his complaint. Count 4 simply cured the defects of count 3.
In the case of Birmingham Railway, Light & Power Co. v. Randle, 149 Ala. 539, 43 South. 355, this court said: “Motorman Duffey was asked this question: ‘Tell the jury whether or not you stopped the car as soon as you could?’ The court sustained an objection by the plaintiff to this question. The witness should have been required to state the facts as to what he did in order to stop the car. * * * It would have then been proper to have further inquired of him as to whether what he did was all that could have been done to stop the car as soon as possible.”
' In the instant case the witness, before being allowed to state that he did all that he could, upon the discovery of the injured party’s peril, to stop the train as soon as possible, was not required to state all the facts as to what he did in order to stop the train, but before he left the witness stand he did state all the facts as to what he did to stop the train. In other words, in the instant case, when this witness left the stand, the jury
Chief justice Anderson and Justices McClellan, Mayfield, Sayre, Somerville, and Gardner are of tbe opinion, upon a consideration of all the evidence presented by tbe record, that tbe evidence in tbis case was not sufficient to submit to tbe jury, under tbe rules laid down in Southern Railway Co. v. Stewart, supra, tbe question as to whether, on tbe named occasion, tbe servants of tbe defendant were guilty of that reckless indifference to human life and safety as to amount to wantonness. They are of tbe opinion that tbe record fails to show such a use of tbe track of tbe defendant, by pedestrians, at or near tbe place of tbe injury, as to render tbe servants of the defendant guilty of wantonness in running tbe train without signals and at tbe rate of speed at wbicb tbe train was run, as shown by tbe testimony, at tbe time when, and tbe place where, tbe plaintiff’s intestate received bis injuries.
Tbe writer of tbis opinion does not concur in tbis view of tbe majority. He thinks that under tbe decision of tbis court in Southern Railway Co. v. Stewart, supra, there was some evidence in tbis case upon wbicb
This case has received the careful consideration of all of the members of this court; and, the above being the conclusions of the court, it follows that the judgment, of the court below must be affirmed.
Affirmed.