18 So. 2d 547 | Ala. | 1944
The suit was under the homicide statute. There were three counts as framed charging subsequent negligence, and a willful and wanton count. When the evidence was in defendant requested the general affirmative charge as to each count, which was refused. This ruling of the court is assigned as error.
Each of the four counts of the complaint upon which defendant's alleged liability is predicated proceed upon the theory and aver that the servants, agents or employees of the defendant committed the wrongful act complained of after the danger to plaintiff's intestate was discovered, knowing the situation of peril of the deceased, or after becoming aware of deceased's peril, failed to use due caution to prevent injury, or that they wantonly or willfully ran over or upon him, which caused his death. The first three counts of the complaint charge subsequent negligence, while the fourth charges wanton and willful misconduct.
The allegations attempting to show liability of the defendant for subsequent negligence, place upon the plaintiff the burden of proving that the employees of the defendant operating the train which caused decedent's death actually knew that the deceased was present upon the track in peril and within such time as to render the failure to stop the train before injuring or causing his death as an act of negligence. To maintain the charge of wanton or willful negligence, or intentional wrong as charged in the complaint, the burden of proof is upon the plaintiff to show that the engineer operating defendant's train was at the time in fact acquainted with the conditions out of which the duty arose to avoid intestate's peril. As to this count, no mere evidential presumption can equal in this respect that conscious knowledge which is an essential element of wanton or intentional wrong. It is averred that:
"* * * plaintiff's intestate, Jeff Griffin, was within the corporate limits of the City of Eufaula, Alabama, in a place of danger upon or near to the track where defendant was operating said locomotive and train of cars, * * * that, after the dangerto her intestate was discovered by defendant's engineer orother person who was then and there in charge or control of said locomotive, as aforesaid, while acting within the line and scope of his employment as such engineer, or other servant or agent, wrongfully wantonly, willfully, or intentionally ransaid locomotive and cars over, upon or against plaintiff'sintestate at the time and place aforesaid, and thereby killed him; * * *." [Italics supplied.]
We should observe that the burden of proof assumed by the pleader adverted to and embraced in the evidence shows plaintiff's intestate was without dispute a trespasser upon defendant's railway track. He was seen in the late afternoon preceding his death under the influence of liquor, and at the time having a quart bottle about half full in his possession; that the last time he was seen alive was by his brother on the same afternoon between five and five-thirty o'clock on defendant's railroad track back of the city cemetery. His crushed and mangled body was found prone between the rails of the track at an isolated spot between 8 and 9 o'clock, Central War time, on the night of July 24th, 1942, at a point between the trestle which spans Chewalla Creek and the "cemetery brick wall," within the city limits. There were no eye witnesses to the accident which caused his death.
Appellant insists that defendant failed to meet the burden of proof and hence the several general affirmative charges were requested as to each count. Before considering the rulings of the trial court in refusing these charges, we will advert to the rulings on evidence to which exceptions were reserved.
It is first insisted by the appellant that the lower court erred in admitting in evidence the Code of the City of Eufaula, particularly Section 527 thereof, the ordinance prohibiting the rate of speed of trains in excess of eight miles per hour within the city limits. That such was error is manifest when it is seen that the complaint, as well as the testimony presented by the plaintiff, attempts to predicate the defendant's liability upon subsequent negligence in that the employees of defendant failed to stop the train after becoming aware of deceased's peril. Although in an action for simple negligence the violation of a city ordinance is relevant; obviously, in a case of subsequent negligence, involving circumstances such as this case on appeal, such violation could not be the proximate cause of the injury and death of *602 plaintiff's intestate, nor in any other way constitute material or competent evidence.
Neither count charges negligence in the operation of the train, at the time and place, at an unlawful rate of speed, but charges subsequent negligence, and willful and wanton misconduct after discovery of peril. Therefore, even though the ordinance has the force of law, the violation thereof is classified as simple negligence and not admissible in evidence under the allegations of the complaint. Roberts v. L. N. Ry. Co.,
It has been declared by this court to operate a train within the corporate limits of a city at a speed prohibited by its ordinance, without more, will not constitute a wanton or intentional wrong, rendering a defendant liable for the death of a trespasser. Martin v. Union Springs N. Ry. Co.,
In Martin v. Union Springs N. Ry. Co., supra, this court held that the mere violation of a city ordinance would not constitute such conduct as to impose liability for the death of a trespasser. And in Helms v. Central of Ga. Ry. Co.,
The testimony of plaintiff's witnesses and that of Griffin, Morrell and Walker was to the effect that numerous people for the two years next before the death of plaintiff's intestate had used the railroad track, where the injury occurred, as a travel-way for pedestrians from Hoboken to Eufaula, but such testimony does not raise a conflict that would prevent the giving of the affirmative instruction requested. However, the engineer in charge and the superintendent of tracks testified, without dispute, that a constant lookout was maintained at the time and place and that no human being was observed on thetrack as a pedestrian or otherwise.
In Central of Georgia Ry. Co. v. Blackmon,
The evidence discloses without dispute that plaintiff's intestate was a trespasser at the time and place of his injury and that defendant owed him no duty except to exercise reasonable care to avoid injuring him after discovery of his peril as a human being, and this duty arose at the moment the peril of his position became known to the engineer in charge of the train and not before. Southern Ry. Co. v. Bush.
It may be further observed that all of our cases are to the effect that an essential of guilt of subsequent negligence means not imputed knowledge, but that, as stated in Louisville N. R. Co. v. Griffin,
In Central of Georgia Ry. Co. v. Bates,
Defendant's engineer, operating the train on the fatal night of July 24, 1942, stated that he passed the trestle running toward Eufaula at the rate of 35 miles per hour. He had been on the said run from Montgomery to Eufaula for a little more than four years, was familiar with the railroad at the point, and testified (the map in evidence confirming his testimony), that: "When you come over the trestle there is a reverse curve that prevented me as engineer from seeing far down the track (as he approached) in the day time." That he had a forty foot boiler ahead of him and by reason of the indicated terrain and his boiler, and the time of day, he could have only seen about 150 feet from the trestle. He further testified, and is not contradicted by any witness, that he was maintaining a continuous look-out "down the track" on the other side of the trestle until he got to where the cemetery brick wall was located. That at such time and place he did not see a person on the track between Hoboken and Eufaula, "not that I knew of." That he saw an object on the track which he thought was a piece of waste paper or a sack, and could not tell "whether or not it was a man." That from the point where he first saw the waste paper or sack his engine was 100 feet back of it. He further said that his vision as to this object was "just a flash" and he did not recognize that it was a "human being at all." That he did not make any report of this when he arrived at the depot in Eufaula and went on the regular run into Georgia, and learned the next day that the train had killed a man on the track at the point where he noticed what he thought was a "piece of waste paper or sack."
Plaintiff's supervisor of tracks, Mr. Reaves, was riding with the engineer on the occasion of this accident and was seated on the fireman's side of the train on the left of the engineer. When they crossed the trestle, while the fireman was engaged in the discharge of his duty firing the engine, witness was sitting on the fireman's box, looking ahead along the track; that witness had nothing to do with operating the train that night, yet he was keeping a lookout along the track from the trestle to the cemetery brick wall, and didn't see anything on the track. He testified, "I saw no object of any kind."
The general rule of liability under stated facts is set out in Montgomery Light Traction Co. v. Baker,
"* * * A man who is drunk or in any way disabled, on a street car track, is entitled to a recovery for damages inflicted upon him by a street car if the motorman saw him on the track in time to prevent the injury, and then negligently failed to use the precautions which a reasonably prudent man skilled as a motorman would have been expected to use to prevent the injury. * * *"
The many authorities from this jurisdiction on the question are collected in 45 Corpus Juris, pp. 1098, 1099, and well *604 state the rule as to willful and wanton injury.
We have indicated that the several counts (construed against the pleader) show that plaintiff's intestate was a mere trespasser sitting or lying on the track when injured. Louisville N. R. Co. v. Rogers,
"* * * This apparent misconception of the language of the Lee Case [
Under the facts of the Stewart case and the case at bar, Mr. Justice Somerville's following observation is controlling:
"* * * It is therefore perfectly clear on the undisputed evidence that whether or not defendant's servants were bound to anticipate the presence of pedestrians walking on the track at that point, and hence under the duty of discovering their presence and avoiding doing them injury, they were not bound to anticipate the presence of intestate lying prone between the rails, and were, therefore, under no duty to look out for and discover such presence, and under no duty to avoid injuring him, in the absence of actual and timely knowledge of his presence in that place of danger. In other words, plaintiff's right of recovery must be tested, not by the duty owed to the general public under the conditions named in the complaint, but only by the duty owed to her intestate under the wholly different conditions shown by the evidence. * * *"
The true rule stated in the Stewart case and in the Drake case (Southern Ry. Co. v. Drake,
The subject was given examination by Mr. Justice Somerville in Northern Alabama Ry. Co. v. Henson,
"In So. Ry. Co. v. Drake,
"In holding that upon this evidence the trial judge should have given the general affirmative charge for the defendant, this court, speaking through Mr. Justice Denson, said:
" 'Therefore to say, upon the proof disclosed by the record, that the engineer saw and realized that the object was a human being before he reached the point 30 feet from it, and consequently, that he had actual knowledge of intestate's peril before that point was reached, would, it seems to the court, be the indulgence of pure conjecture or speculation.'
"* * * Our conclusion is that the evidence does not support a finding for plaintiff under either the second or third count of the complaint, and that the trial judge erroneously refused to give for defendant the general affirmative charge as duly requested in writing."
The two counts involved in that case were subsequent negligence and wilful and wanton counts.
The testimony of George Walker, tending to impeach the testimony of defendant's supervisor of tracks, who was on the engine at the time of the accident, did not go to the question of liability as charged in the several counts and did not bring *605
about a conflict in the testimony which would prevent the giving of the affirmative instruction requested by the defendant. 1st Greenleaf on Evidence, page 460(b); Nashville, Chattanooga St. Louis Railway Co. v. Harris,
The general affirmative charges requested by the defendant should have been given, and the refusal of such charges was error to reverse.
The judgment of the Circuit Court is therefore reversed, and the cause is remanded.
Reversed and remanded.
GARDNER, C. J., and FOSTER and STAKELY, JJ., concur.