66 So. 519 | Ala. | 1914
On April 14, 1910, Lee Gaston Robinson, an infant 18 months of age, was killed by being rnn upon by an engine and train operated by the Illinois Central Railroad Company. J. R. Gaffney was the engineer in charge. The Illinois Central Railroad Company, J. R. Gaffney, and the Alabama Western Railroad Company, a domestic corporation, were joined as defendants in the action. At the request of the plaintiff the court gave to the jury a special instruction, in which an apt form of verdict was set forth if the jury should find for the plaintiff and against the Illinois Central Railroad Company and J. R. Gaffney and in favor of the defendant Alabama Western Railroad Company. The bill of exceptions then recites: “After argument of the case by counsel to the jury the court passed upon all written charges, and gave to the jury his oral charge' in full. In the opening of the oral charge to the jury, the court excluded from the consideration ,of the jury all of the testimony of the witness W. C. Davis. After the court finished its oral charge, the plaintiff’s counsel, Capt. Frank S. White, read to .the jury a written charge given at his request (numbered charge A above set out), which was a prescribed form of a verdict if the jury found in favor of plaintiff as against Illinois Central Railroad Company and J. R. Gaffney, and found in favor of the defendant Alabama Western Railroad Company. After he had read the same, in the hearing of the jury, he annuonced that plaintiff would not insist upon a verdict against the Alabama Western Railroad Company. Thereupon Mr.
Verdict was rendered against the Illinois Central Company and Gaffney and in favor of the other defend
In order to invite and to* justify the removal of a cause from the state to the federal court on the ground of fraudulent joinder of a defendant of like state residence with the plaintiff, to the end of defeating, and with the purpose of defeating the right of removal because of diverse citizenship, from the plaintiff, of the real parties defendant, the bad faith of such joinder must-be alleged, with circumstantiality as to the facts, and then proven.—A. G. S. R. R. Co. v. Thompson, 200 U. S. 206, 215, 216, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; L. & N. R. R. Co. v. Wangelin, 132 U. S. 599, 601, 10 Sup. Ct. 203, 33 L. Ed. 473; 34 Cyc. pp. 1288, 1289. The petition in this instance contained no charge, much less allegations of facts, impeaching the good faith of the joinder of the domestic corporation as a defendant. Hence the issue of bad faith in that join
If before entering on the trial a plaintiff voluntarily dismisses or discontinues his action against the only defendant having a like state residence with the plaintiff, leaving only nonresident defendants, the cause is, so far as the right to removal is concerned, the same as if the dismissed defendant had not been made a defendant; and, if otherwise so entitled, removal may be had.—Powers v. C. & O. Co., 169 U. S. 92; 102, 18 Sup. Ct. 264, 42 L. Ed. 673; Whitcomb v. Smithson, 175 U. S. 635, 637, 20 Sup. Ct. 248, 44 L. Ed. 303.
The cause at bar is not within the rule just stated. There was, as clearly appears from the quoted recitals of the bill of exceptions, no dismissal or discontinuance of the action' as against the domestic corporation. The cause had been litigated throughout upon the theory — however unfounded in fact can make no material difference on this phase of the question — that the domestic corporation had some relation of ultimate responsibility for the wrongful acts of the Illinois Central Company or of its servants. When it appeared, at the conclusion of the trial, that no case had been made out against the domestic corporation, the statement, even to the jury, of that fact could not be interpreted as operating the dismissal of the action as to the defendant mentioned. At most it was a reference to the merits of the controversy (Whitcomb v. Smithson, supra.), and contemplated a verdict for that defendant, not a dismissal of that defendant from the tribunal without a verdict in the premises.
The insistence that there was variance in respect of the'description of the track over which the Illinois Central train was running when the child was killed is without merit. The testimony of the witness Quinn
The issues of fact made by the first and third counts of the complaint — the former, sufficiently, under established rule, charging that the injury was the result of wanton misconduct, and the latter sufficiently' ascribing the injury to simple negligence after the discovery of intestate’s peril — were properly submitted to- the jury. There was evidence, as in Gullatt’s Case, 158 Ala. 502, 505, 506, 48 South. 472, tending to show that- the engineer saw intestate, an 18 months old child, astride one of the rails before his oncoming engine; that the day was clear; that the “cattle alarm” was given by him; that this alarm was referrable to the presence of intestate on the track, that it was given a sufficient distance from intestate to allow the further finding that the train could have been brought to a stop before striking the child, and that the actual operation of stopping this train brought it to a rest within such distance from the point at which the effort to stop it Avas begun and took initial effect as that, if earlier undertaken, would have stopped the train before the child was struck.—A. G. S. R. R. Co. v. Hamilton, 135 Ala. 343, 33 South. 157. The evidence was conflicting on the issues. Its credibility was for the jury. If the evidence tending to support the material averments underlying plaintiff’s right to recover on either of the counts was credited by the jury, it could not be said, on this record, that their conclusion was unsustained by the evidence. The review here of the propriety of overruling a motion for a new trial does not, of course, con
The first and third counts of the complaint were not subject to demurrer. They aver that the train in question was being operated by an engineer then in the service and acting under the authority of the Illinois Central Company. Manifestly these allegations exclude the idea that the train was not then being operated by and for the Illinois Central Company.
After the dead child had been carried into the near by house of its parents, the engineer, Gaffney, made some statements in the presence of people assembled there. On the trial the substance of his testimony was that he first saw a white object on the rail, but thought it was a piece of paper or package until too close to avert the injury by any means at his command. On his cross-examination he was asked by counsel for plaintiff if he did not, on the occasion referred to above, say, in the presence of named individuals, that the child ran upon the track off of a little bridge in such proximity to the engine that it could not be stopped in time to avert the injury. It is insisted in brief that the impeachment thus sought to be effected was with respect to an immaterial matter. All of the circumstances attending the place of injury, the presence of the child on the track, when it was first discovered by the engineer, and what was done to avert the injury, were of course of the very essence of the issues on trial. Any previous statement made by the engineer different in respect of these elements of the issues were admissible as affecting the credibility of his testimony.
There was no error in admitting the testimony tending to show that the fireman was in his place and looking ahead as and after the train turned the curve some 800 yards from where the child was on the rail and came down the straight track to the place of injury. There was testimony to the effect that unless otherwise engaged in the performance of his services on the engine, it was the fireman’s duty to look ahead and give notice to the engineer of anything he saw on the track. The fact that the negligence alleged was laid against the engineer, and not the fireman, did not render the testimony under consideration inadmissible.
The declination of the court to allow defendant’s counsel to ask the witness Chambers on cross-examination what he had told plaintiff’s counsel was not made the subject of an exception. That matter cannot therefore be reviewed.
Charge I was properly. refused to defendants. Its terms, while somewhat like, are yet different from, those found in the fourth charge considered in Randle v. B. R. L. & P. Co., 169 Ala. 314, 322, 323, 53 South. 918. This charge was rendered faulty by the employment of the expression with reference to “nominal damages.” Besides charge 6, given at defendants’ request, was a substantial duplicate of refused charge I.
No error being made to appear the judgment must be affirmed.
Affirmed.