95 Ala. 412 | Ala. | 1891
Lead Opinion
No demurrer was interposed to the complaint. The defendant moved to arrest judgment on the verdict rendered by the jury. This motion was predicated upon the ground that the complaint did not show any cause
Sub-division 5' of section 2590 of the Code is in these words: “When sucb injury is caused by reason of tbe negligence of any person in tbe service or employment of tbe master or employer, wbo has tbe charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway.” In tbe corresponding sub-division of tbe original act, upon which this section of the Code is founded, tbe language is, “by reason of tbe negligence of any person in tbe service of tbe employer, wbo has tbe charge or control of any signal, switch, engine, or train upon a railway, or any part of tbe track thereof.” — Acts of' Ala. 1884-85, p. 115. It thus appears that tbe words “points,” “locomotive” and “car,” were introduced by tbe codifiers. A result of tbe change is to enable an employe to maintain an action against bis employer, for an injury caused by reason of tbe negligence of any person in tbe service or employment of tbe master or employer wbo has tbe charge or control of any car upon a railway. It is argued tbat, as tbe word “car” is used in connection with tbe words “locomotive,” “engine” and “train,” it was intended to mean a vehicle used on a railway for tbe transportation of passengers or freight, which is propelled by a locomotive or engine, and forms a part of a train. It is true, tbat in determining tbe true sense of a word which has a variety of meanings, regard should be had to tbe other words with which it is associated, and to tbe subject-matter in relation to which it is used. As tbe clause of the statute which is under consideration has reference to injuries received in railway service, it seems plain that the word “car,” as here used, does not include such vehicles moved on wheels as are not used on railways, though there are sucb vehicles which may properly be called cars. It is not difficult to
2. Tbe complaint attributes tbe injury complained of to tbe negligence of tbe foreman in applying tbe brake without warning while tbe car was being propelled at a rapid rate of speed, and thereby suddenly checking its speed and causing the plaintiff to be violently thrown off, in front of tbe moving car, so that it ran against and over him. Evidence tending to show tbe speed of tbe car was competent in support of tbe allegations of tbe complaint in that regard. On tbis subject tbe plaintiff stated: “I would think tbe lever-car was going at tbe rate of eight or ten miles an hour.” His counsel then asked him tbis question: “About bow fast, compared to a man running?” Tbe defendant’s objection to the question having been overruled, tbe witness answered: “Well, sir, it was running faster than a man could run.” Tbe defendant’s motion to exclude tbe answer was also overruled. It is often impossible for tbe appearance wbicb was presented by a moving object to be conveyed to tbe minds of tbe jury so clearly that they could form a satisfactory conclusion as to its velocity, without tbe aid of .the opinions of eye-witnesses. Conclusions
3. There was no evidence tending to show that any one on tbe lever-car beard an extra train coming, or that a train was in fact approaching from either direction when tbe brake was applied by the foreman. Tbe inquiry as to what tbe section-foreman and tbe section-bands should do with a lever-car on which they are riding, when they bear a train coming, could not tend to throw any light on tbe question of the foreman’s duty in tbe circumstances
4. The question in reference to the danger incurred by one who fails to hold on to anj'thing while standing on a moving lever-car called for evidence which, in connection with the other proof in the case, would have tended to show that the' plaintiff was negligent in that regard. Contributory negligence is in its nature defensive, and the burden of proof to show it is upon the party who relies upon it. The pleas interposed by the defendant in this case did not go beyond a traverse of the allegations of the complaint. If contributory negligence on the part of the plaintiff was relied upon as matter of defense, it should have been specially pleaded. A denial of the charge of negligence made against the defendant in no way involves the averment of negligence on the part of the plaintiff. The defendant’s pleas did not present any issue of contributory negligence.— Thompson v. Duncan, 76 Ala. 334; Mobile & Montgomery Ry. Co. v. Crenshaw, 65 Ala. 566; Louisville & Nashville R. Co. v. Hall, 87 Ala. 708; North Birmingham S. Ry. Co. v. Calderwood, 89 Ala. 247; Beach on Contributory Negligence, § 157. It is proper to exclude evidence which is pertinent only to an issue which is not presented by the pleadings. For this reason, the objections to the questions as to the plaintiff’s negligence in letting go the handle of the lever-car were properly sustained.
5. The question propounded by the counsel for the defendant to the witness West on his direct examination, to which an objection was sustained, was so framed as to suggest the answer desired. The witness had just stated that he never ran on a curve without stopping to ascertain whether any trains were coming. To ash him, immediately after this statement, if it was his duty to make such a stop or not, was well calculated to indicate to him what answer was expected. The court was justified in sustaining the objection to the question, because of its leading character under the circumstances.
6. It is true that it is the duty of the jury to weigh the evidence, and not merely to count the witnesses introduced by the respective parties. We are unable to perceive how
7. It was shown without contradiction that, when tbe brake was applied, tbe plaintiff was standing in tbe front end of tbe car, facing in tbe direction from which tbe car was coming, and that be was assisting in working tbe handle of tbe lever on that end of tbe car; that in the position be was in there was nothing be could bold to but tbe handle of tbe lever. There was evidence tending to show that, when tbe lever-car was under good headway tbe men working tbe lever would at times turn it loose without bolding on to anything else; and that, on tbe occasion in question, tbe plaintiff in assisting to work tbe lever would let go tbe handle as be pushed it down. There was evidence to support a finding that West knew that tbe persons operating the band-car were at times in tbe habit of turning-loose tbe lever, when tbe car was running down grade. If with this knowledge, and at a place where they were not accustomed to stop, be applied tbe brake so as to check with unnecessary and dangerous suddenness tbe speed of tbe car when it was running down grade, without notice to tbe persons operating tbe same, and without looking to see that such persons were bolding to tbe lever, tbe inference of negligence from such conduct is clear and certain. Tbe sudden checking of tbe car without notice necessarily involved tbe danger of a fall to a person who was standing upon it without support. If the state of facts hypothesized in tbe second charge given at tbe request of tne plaintiff bad been submitted to tbe court as a special finding of tbe jury, tbe conclusion of negligence could have been pronounced as a matter of law. Tbe charge submitted tbe questions of fact for tbe determination of tbe jury from tbe evidence. There was no error in instructing them that, if they believed from tbe evidence that such was the state of facts, then tbe act of tbe foreman was negligent. — Louisville & Nashville R. Co. v. Perry, 87 Ala. 392; East Tenn. Va. & Ga. R. Co. v. Bayliss, 74 Ala. 150; City Council of Montgomery v. Wright, 72 Ala. 411.
8. As tbe defense of contributory negligence was not presented by tbe pleadings, no injury could have resulted to tbe defendant by tbe charge stating that “tbe court leaves it to tbe jury to say whether, under tbe evidence in this case, tbe plaintiff was guilty of contributory negligence.” This charge should have been refused; but the giving of it could work no injury to tbe defendant, as tbe effect was to allow tbe defendant tbe benefit of a defense which bad not been set up.
9. A proposition of the fourth charge requested by the defendant is, that if the jury can not say who has told the truth, then they must find the facts, so far as there is conflict, not proven in this case, and if such facts are necessary to be proved in order for plaintiff to recover, they must find for the defendant. A jury may not be satisfied that any one witness in the case has told the truth throughout his testimony, and yet they may be able, from a fair consideration of all the evidence before them, to arrive at a satisfactory conclusion in reference to the matter presented for their determination. They should not be instructed to make up an issue as to the testimony of each witness, and render a verdict as to its truth or falsity. In weighing all the evidence, it can not be said to be their duty to reject the entire testimony of a witness who has erred in some material particular. An untrue statement may be attributable to an honest mistake, and may be reconcilable with the absence of any intention to misrepresent the facts. If the jury can satisfactorily determine the issues of fact presented to them by weighing the evidence and sifting out the truth, their conclusion would not be vitiated because they could not say that the witnesses upon whose testimony their verdict is based have stated nothing but the truth of the matter as they have found it. The charge was properly refused.
10. Although there was no custom to give notice before applying the brake, yet it is plain that it might be applied to check the car in such a manner, and under such circumstances, that a failure to give notice would render the act negligent and unnecessarily perilous to other persons on the car. There was evidence tending to show that the foreman applied the brake so as to check the car very suddenly, while it was in rapid motion, and at a place where it was unusual to make a stop. It was for the jury to say from the evidence whether the brake was applied in such a manner as to render the act negligent. Charges 6, 8, 9, and 21 requested by the defendant were properly refused, because they assert, in effect, that the absence of a custom on the subject would preclude the imputation of negligence to the act of the foreman in applying the brake without notice
As has been already indicated, there was evidence from which the jury would be authorized to find that the injury was caused by the checking of the car in an unusual ancl negligent way. Charge 13 requested by the defendant was properly refused, because it asserted that there was no such evidence.
The principal argument suggested in support of the correctness of charges 1, 2 and 3 requested by the defendant is the one which has already been considered and disposed of in the review of the action of the lower court in overruling the motion in arrest of judgment.
"We have discovered no reversible error in the record, and the judgment must be affirmed.
Rehearing
(In response to application for re-hearing.)
It is insisted in the application for a rehearing that the defense of contributory negligence could be made under the general issue. The scope of that plea is prescribed by the statute. It puts in issue “all the material allegations of the complaint.” — Code of 1886, § 2675. Of this statutory plea it was said in Petty v. Dill, 53 Ala. 645: “ It cast on the plaintiffs the onus of proving every material allegation of the complaint; it limited the defense to evidence in disproof of them. No matter in avoidance of the
Our attention has been called to several cases in which the defense of contributory negligence was considered by this court, though only the general issue was pleaded. Pryor v. Louis. & Nash. R. R. Co., 90 Ala. 32: Hissong v. Rich. & Danv. R. R. Co., 91 Ala. 514. In neither of those cases did the court notice the point. Nothing was said on the subject. Those cases are not authorities against a proposition which was not mentioned therein in any way. Former decisions are entitled to weight, under the doctrine of stare decisis, only when the proposition in support of which they are cited was considered and passed on.
The deiendant’s pleas, three in number, are set out in their proper place in the record. This court can not indulge the presumption that other pleas were filed, especially as the indulgence of such presumption would involve the imputation of error to the trial court. When the record fails to set out the pleas, but it appears that special defenses were considered by the trial court without objection, to avoid the imputation of error, it may be presumed that such defenses were supported by proper pleas. But when a complaint and pleas thereto are found in the record, there is no more room for a presumption that other and different pleas were interposed, than there would be for a presumption that allegations other than those which the record discloses were added to the complaint by amendment.
It is also insisted that the conduct of the plaintiff on the trial, as disclosed in the bill of exceptions, shows that he
In the application for a re-hearing it is contended for the first time the plaintiff was not entitled to recover on the second count of the complaint, unless the evidence showed such recklessness on the part of the defendant, its agents or servants, as would avoid the defense of contributory negligence; and that there was no evidence tending to show such recklessness. On the strength of this proposition it is claimed that the general affirmative charge in favor of the defendant as to the second count of the complaint should have been given as requested. The count, in describing the manner in which the brake was applied by the foreman, charges that it was done “negligently, carelessly and recklessly.” The question presented is, does the mere fact that the act is stated to have been reckless put upon the plaintiff the burden of making out such case that his own contributory negligence would not stand in his way of right to recovery ? It has been decided in several cases that a charge that the act complained of was willful, or that it was knowingly done, can not be supported by evidence of mere negligence, not involving willfulness or knowledge of the danger. — L. & N. R. R. Co. v. Johnston, 79 Ala. 436; L. & N. R. R. Co. v. Coulton, 86 Ala. 129; Birmingham Min. R. R. Co. v. Jacobs, 92 Ala. 192; Highland Ave. & B. R. Co. v. Winn, 93 Ala. 306. And it has been held that a plea of contributory negligence to a complaint charging a willful infliction of injury by the defendant is bad on demurrer.' — A. G. S. R. R. Co. v. Frazier, 93 Ala. 45. The word loillful imports that the act to which it refers is done inten-
In Harrison v. The State, 37 Ala. 154, the distinction was drawn between the words tuillful and recldess, as employed in reference to criminal acts. It was there said, “The word willful, when employed in penal enactments, has not always the same meaning. In this statute, it is used as the synonym of intentional, or designed — pursuant to intention ox design; without lawful excuse. . . . The word recldess means ‘heedless, careless, rash, indifferent to consequences.’ Now, one may be heedless, rash, or indifferent to results, without contemplating or intending these consequences. As a general rule, there is a wide difference between intentional acts and those results which are the consequence of carelessness,” The same distinction was recognized in a late case. — Johnston v. State, 92 Ala. 82. The distinction is not obliterated when the two words are used in characterizing civil torts instead of crimes. Now, the degree of recklessness which will avoid the defense of contributory negligence is such as implies a willingness or a purpose to inflict the injury complained of — a consciousness that the unwarranted conduct will inevitably or probably lead to wrong and injury.— Ga. Pac. R. Co. v. Lee, 92 Ala. 262. In charging recklessness in general terms, no more is necessarily implied than such mere negligence, thoughtlessness or inadvertence as could not be regarded as the equivalent of intentional wrong, and which, therefore, would be insufficient to overcome the defense of contributory negligence. A plea of contributory negligence can not be regarded as presenting no defense, because recklessness is charged in the complaint, unless it appears from the averments of the complaint that the recklessness charged amounted to more than mere negligence. There is nothing in the averments of the second count of the complaint in this case to show that the word was used in its harsher sense. There was evidence tending to show that the act of the foreman in applying the brake was reckless within the milder meaning of that word as above defined. The averments of the complaint by no means necessarily import that the objectionable act of the foreman was willful.
It is much to be regretted if the defendant has, in consequence of an erroneous statement in a former opinion