69 So. 518 | Ala. | 1915
Appellee, plaintiff below, lost his little toe and a part of the next to it while attempting
After a careful reading of all the evidence shown by this record — which recites that it contains all the evidence — and after argument, oral and by brief, of able counsel for the appellant and the appellee, we have reached the conclusion that the trial court erred, to the prejudice of the defendant, in the oral charge, as to the question of wanton or willful injury as alleged in the tenth count. We are unable to find any evidence in this record which, if believed by the jury, would authorize them to find that the material allegation of count 10 was proven. The allegation to which we refer is to the effect that the agents or servants of the defendant, who controlled or managed the movement of the train on the occasion in question, “with knowledge of plaintiff’s posi
The facts do not bring tbe case within tbe rule announced in Shelton’s Case, 136 Ala. 191, 34 South. 194; Guest’s Case, 136 Ala. 353, 34 South. 968, and other cases relied upon, where tbe person injured was on tbe railroad track in front of an approaching train, and it wás shown that those in charge of tbe train actually saw the person, or were looking in that direction, and so could hardly have failed to see him, and be thereby made-conscious of his imminent peril. Nor is this case brought within the influence of that line of cases — Peter’s Case, 135 Ala. 540, 33 South. 332, and those following it— Avhere tbe person went on or across a railroad track at a place where the view was unobstructed, yet testified that be stopped, looked, and listened, but did not see, a nearby, approaching, car or train, Avhich struck him before be could cross, or get off tbe track. In such cases tbe very laws of physics render it impossible that tbe testimony can be true. Neither courts nor juries should accept or regard such statements of witnesses, when tbe laws of nature render them utterly incredible and even impossible.
One is not chargeable with wanton ness unless he knows of the existence of such conditions as make it likely or probable that injury will result from what he does or omits to do, and his conscious and intentional wrongful conduct in the light of .such knowledge evinces a reckless indifference to consequences. If there is neither such knowledge nor such reckless indifference to consequences, however negligent the conduct may be, it is not to be characterized as wanton. — Peters v. South. Ry. Co., 135 Ala. 533, 33 South. 332; Bessierre v. Ala. City, G. & A. R. R. Co., 179 Ala. 322, 60 South. 82; Southern Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927; Liverett v. Nashville, C. & St. L. R., 186 Ala. 111, 65 South. 54. “Action induced by a mistaken inference of the lack of the danger involved in talcing it is not the same thing as the heedless doing or omission to do something by one who is aware that harmful consequences are likely to ensue. While those in charge of the train, unwarrantably relying on the sufficiency of
There was, however, ample evidence to carry the question of simple negligence to the jury, and likewise the questions whether or not the plaintiff, at the time of the injury, was a trespasser, and whether or not he was guilty of contributory negligence; so the affirmative charge for the defendant as to all the issues was properly refused.
As the case must be reversed and remanded on the question of wantonness, involving the determination of whether punitive damages are recoverable, it is not now proper to pass on the questions as to the refusal of a new trial and the excessiveness of the verdict as reduced by the trial judge.
Reversed and remanded.