94 So. 302 | Ala. | 1922
The first appeal, decided June 30, 1920, was on the issue of wanton misconduct of Conductor Wakefield after plaintiff had complained to that official to prevent a continuation of abuse and insult. Hines v. Miniard,
Defendant requested general affirmative charges and special charge C, that "this suit is not a suit against the Illinois Central Railroad Company and the Illinois Central Railroad Company has no interest in this suit," which were refused. A companion charge (5) given for defendant was: "You cannot give damages in this case for the purpose of punishing the Illinois Central Railroad Company."
The Illinois Central Railroad Company, originally made a defendant, was stricken on plaintiff's motion on February 10, 1921, after the discussion on the subject of proper parties to such actions (Crim v. L. N.,
It must be conceded that at the time of the second trial the final responsibility as to proper defendants to such action — whether the government alone or in conjunction with the corporation whose transportation properties were being operated by the government — was a matter of uncertainty.
The bill of exceptions discloses that there was a difference of opinion at the time of the trial as to the final responsibility of defendants in such actions, which was evidenced *178
by the respective arguments of counsel to the jury on the question. The cogent reasons on which was rested the decision in Standridge v. Martin,
The stenographic report of the testimony of R. H. Miniard was read to the jury against due objections and exceptions. In attempting to lay a predicate to justify secondary evidence, plaintiff was asked of the whereabouts of Mr. Miniard at the time of the second trial:
"Q. Where is he living now?
"Counsel: We object to that.
"A. Gary, Ind."
Objection by defendant being sustained by the court, plaintiff asked the witness:
"Q. Where is he now? A. He is in Gary, Ind. Q. How long has he been living there? A. He has been there a little more than a year now."
Thereupon the court explained to the jury that the testimony was admitted on the ground that the witness was out of the jurisdiction, and his testimony having been taken on a former trial of this case, with the right of cross-examination, made the same admissible "in so far as the questions and answers are competent." The effect of the decisions is that, when evidence given at a former stage of the same action or on a former trial, where the parties and issues were substantially the same, and the witness was subject to cross-examination, or may have been so examined, by the party against whom the same is offered, and there is inability to produce the witness (on a subsequent proceeding by reason of his death, insanity, or such other disability, or by his permanent or indefinite absence from the jurisdiction of the court), and his return is contingent, uncertain, or conjectural, then the former evidence is admissible. Long v. Davis.
In the application of the exception to the general rule requiring best evidence to be offered of permanent or indefinite absence from the jurisdiction of the court difficulty is encountered. The earlier decisions declared for a more liberal application of the exception to the rule in making out a prima facie case of indefinite or uncertain absence from the jurisdiction than is given expression in the later cases. In Long v. Davis, supra, witness "had gone to Tennessee"; in Mims v. Sturdevant,
"The evidence constituting the predicate for proof of what Everly had testified was the testimony of a witness wherein he said with reference to Everly, 'I don't know exactly where he lives, I saw him about three or four months ago at Cullman, and asked what he was doing and he said he was switching on some line in Texas; I know he is living in Texas,' and this statement on cross-examination, 'I know he is living in Texas because he told me then he was living in Texas.' This, with nothing else to show Everly's whereabouts and nothing to show a search for or an effort to procure his attendance at court, falls short of fulfilling the measure of proof required to lay the predicate."
In Morris v. State,
The predicate for witness Miniard did not show that the witness was permanently or indefinitely absent from that jurisdiction. Justices McCLELLAN, SAYRE, SOMERVILLE, and MILLER concur in the opinion of the writer that the predicate was insufficient. Chief Justice ANDERSON and Justice GARDNER are of opinion that plaintiff's predicate was sufficient to admit the testimony of said Miniard given on the former trial.
The second trial was had on count A. Observation will show that the count did not undertake to aver the quo modo of the gross and wanton conduct or negligence of defendant's servants as to protecting plaintiff as a passenger. Demurrer challenged the count on grounds that no breach of duty was shown, and that the facts averred did not show a willful or wanton wrong. This count was drawn in conformity with count 1, the subject of consideration in Seaboard Air Line v. Mobley,
Is the latter expression in Mobley's Case in harmony with other decisions of this court? For a better understanding of Mobley's Case and that of Tomme v. Pullman Co. (Ala. Sup.)
Counts for simple negligence were the subject of consideration in the depot cases of Southern Railway Co. v. Hanby,
The count in Mobley's Case was for simple negligence as follows:
"Plaintiff claims of the defendant, a body corporate doing business as a common carrier of passengers for hire in Jefferson county, state of Alabama, $30,000 damages, for that, on to wit, December 23, 1913, plaintiff, who was a passenger of the defendant, was injured, while being transported as such passenger by the defendant between Birmingham, Ala., and Atlanta, Ga., as follows: (Here setting out the injuries.) Plaintiff avers said injuries were proximately caused by the negligence of the defendant's servants or agents in and about the carriage of the plaintiff as a passenger of the defendant."
And the expression, "the count is sufficient under the measure of duty of a common carrier," is not in harmony with the requirements of such count for simple negligence. That is, the averment of knowledge on the part of defendant or its agents, acting within the line and scope of their employment at the time of the injury, or that the attending circumstances were such that defendant or its said agents, by the exercise of due care, should have known of the threatened insult to plaintiff in time to have interposed preventive measures, is required. Southern Ry. Co. v. Hanby, supra; N.C. St. L. v. Crosby, supra; Tomme v. Pullman Co., supra. The foregoing cases are in accord that a general demurrer is not sufficient to challenge a count for such a defect as we are now considering. All the justices agree that the analogy found in Southern Ry. Co. v. Hanby, supra, and N.C. St. L. v. Crosby, supra, and the reason on which these rulings rest, require the averment of facts showing the duty to prevent an injury to, or protect the passenger therefrom, by averring knowledge on the part of the defendant or its agents acting within the line and scope of the employment at the time of the injury in a wanton count, declaring for an injury suffered or inflicted from such independent source, agency, or third persons. The justices are agreed that count A was subject to demurrer for such failure of averment of knowledge, but that the grounds of demurrer assigned were not specific and efficacious.
Since the general affirmative charge requested by defendant was refused, we must ascertain whether the evidence was sufficient to sustain an action for wantonness. Hines v. Miniard,
On former appeal the complaint was specifically limited to the acts of Conductor Wakefield, who was in charge of the train during the latter part of the journey, and who, if he had knowledge or notice, was responsible for the situation complained of for only a part of the journey traversed by the two passengers whose respective conduct and injury are the subject of inquiry. That the same situation may be presented as to Conductor Wakefield on this trial, charges A and B were requested and refused. Obviously, if on last appeal plaintiff's charge of wantonness (as against the acts or failure of duty of said conductor) was not made a jury question, and if the facts on second trial were not substantially different from those given on first trial, charges A and B should have been given under the authorities cited in former opinion, and the court's failure to give the same would constitute prejudicial error.
We take judicial notice of our records *181
on first appeal in this case. N.C. St. L. v. Crosby, supra; Terrell v. Nelson,
Plaintiff's evidence tended to show that she and the insane woman became passengers at 8 o'clock at night (when Mr. Springer was the conductor), and continued as passengers in the same coach until four or five o'clock of the next morning, when the insane woman was taken off; that the offensive conduct (affecting plaintiff) on the part of the non compos extended, from time to time, throughout the whole course of the trip; that a portion of the time the conductor and porter were each in the car and observed, or by the exercise of due care could have observed, the offensive conduct, and prevented injury to plaintiff; that during the charge of the car by Conductor Wakefield plaintiff made complaint to the porter, who Wakefield admitted was Albert Lewis (in attendance on the trial), who transmitted the complaint to him. As to the cause of the complaint and response thereto by that conductor, plaintiff's version was that (after recounting the offensive acts or conduct of the insane woman) the latter jumped over the seat, and just as she got by the seat where plaintiff's baby was the husband got between her and the baby, and the woman ran to the back of the coach and addressed plaintiff, cursing her; that this was some three hours before the woman got off the car; that plaintiff "sent the porter for the conductor * * * about three hours before the train" reached Cairo Junction; plaintiff "told the porter that I [she] wanted to see the conductor to have him do something with that negro woman, so he went back, and it was about an hour before the conductor came," and expressed regrets, "and said he would get her out of the coach when they passed at Cairo Junction; it was the Mason and Dixon Line, and he had to get her out. Otherwise he did not do anything."
After a colloquy between counsel and the court, the plaintiff as a witness was asked, "Did any conductor or employé or porter do anything to quiet the woman, or to protect you from her in any way whatsoever from the time she got on the train at 8 o'clock at night until 4 or 5 o'clock in the morning when" the insane woman got off? and answered, "Not a thing; no." The plaintiff's evidence was corroborated by that of her husband, whose evidence was admitted on the predicate we have indicated.
The defendant's evidence, by Conductor Springer, was that he had charge of the train from Chicago to Centralia, where he turned the train over to Conductor Wakefield; that the crazy woman and her attendants got on at Effingham; that "about 20 miles out of Effingham she climbed up in a seat and got hold of these hat racks and started to sing; I did not hear her cursing;" that Mrs. Miniard made no complaint to him; that he did not sit back in the day coach where the two women were, and did not laugh and talk with anybody.
If there was a conflict in the statements of a witness on cross-examination, this did not warrant the court in disregarding the testimony of such witness. Jones v. Bell,
Conductor Wakefield, being sworn as a witness, testified that when he took charge of the train at Centralia he saw the crazy woman thereon; that the former conductor (Springer) had notified him that she was on the train; that during the night Mrs. Miniard "did send for me (him) to come back," and "when I got the word we were within 20 miles of Cairo Junction;" that witness went where the lady was, who inquired how long it would be before the negroes would be taken out of the car, and he replied, "It will be at Cairo Junction"; that she said, "I will be very glad; I am scared of negroes"; and witness assured her that he was "very sorry, but the law required them to ride in this car in this state." He further testified that he did not "sit down in the day coach where the crazy negro was and talk and laugh with *182 anybody" there; that there were five or six towns between Effingham and Centralia, and one stop between Cairo and Centralia at Carbondale, a town of 5,000 or 6,000 population, and a hotel; and there were about eight towns between Carbondale and Centralia, and one with a population of 6,000 people, and a hotel. Witness located the point at which he received the complaint of plaintiff through the porter, Albert Lewis, immediately after leaving Carbondale; stated that it was the duty of the porter to report to the conductor any disturbance in the cars or any loud or abusive language going on among men and women; that said Lewis had been a porter four or five days. Lewis did not testify as a witness, but was in attendance upon the court, or, rather, that is the undisputed inference from the testimony of Wakefield, who said "his name is Albert Lewis. He is outside."
The testimony fails to show that, immediately on complaint of abusive language, or knowledge or notice thereof, the porter, Albert Lewis, reported the same to the conductor. The extent of Wakefield's testimony was that, when the porter communicated to him Mrs. Miniard's complaint, he went to her immediately, or, as soon as consistent with his other duties as conductor, expressed his regrets, and explained when the woman would be removed from the car. It is undisputed that an hour or more intervened between the time of Mrs. Miniard's complaint to the porter and the response thereto by Conductor Wakefield. This made a jury question as to the duty to plaintiff of the porter to immediately report her complaint to the conductor, whether Springer or Wakefield, and sufficient evidence to justify the refusal of the affirmative charge at defendant's request. This is aside from the tendency of evidence that one of the conductors and the porter, Albert Lewis, had been in the car a short distance from plaintiff and insane woman for "a while, * * * an hour or more," during which time the latter indulged in abusive or offensive language in the presence of plaintiff. The testimony was such that on this point there was direct conflict of evidence. McMillan v. Aiken, supra. The jury may reasonably infer that the conductor thus referred to was Springer, and it is without dispute that the porter (Albert Lewis) to whom complaint was made reported to Wakefield, who responded to the request. Whether this report was made promptly or with wanton delay was also a jury question.
The refusal of charge 9, requested by defendant, may be justified by the fact that it was fully and fairly stated by the court in its charge to the jury. The court said in oral charge:
"In other words, while they have the right, and it may be their duty, under such circumstances, to eject violent and abusive passengers, the law says they must put them off at a suitable place. * * * They could not put them off out in the woods, on the one hand but at such place where with reasonable regard to the condition and circumstances * * * would be reasonably safe to eject them."
And the trial judge, reading to the jury from a former opinion in this case, said:
"If it be found necessary to the reasonable safety and comfort of other passengers, such passenger may be removed from the train at the first station where he may be properly cared for."
Moreover, the charge assumes that there were certain towns at which the conductor could not stop the train after the complaint was made, or until the train reached Cairo Junction.
Refused charge 6 should have been given.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
All the Justices concur.
GARDNER, J., rests concurrence in result of reversal upon refusal of charge 6.