This is thе second appeal in this case. For opinion on former appeal see Birmingham Southern R. Co. v. Kendrick,
The suit is under the provisions of § 123, Title 7, Code 1940, the homicide statute. It was originally filed by Adella Kendrick, as administratrix of the estate of Carl L. Kendrick, deceased, against the Birmingham Southern Railroad Company. There was verdict and judgment for the plaintiff. On appeal by the defendant railroad company, we heid that the defendant was entitled to the general affirmative charge and because of the trial court’s refusal to give such charge, the judgment was reversed and the cause was remanded.
After remandment, the death of Adella Kendrick being suggested, the cause was revived in the name of B. B. Kendrick, administrator de bonis non of the estate of his deceased brother, Carl L. Kendrick.
There were no additional pleadings after remandment, but on the second trial there were witnesses testifying on behalf of the plaintiff who had not testified on the first trial. The second trial resulted in a verdict and judgment for the defendant, the case having been submitted to the jury on two counts, both charging subsequent negligence. On the first trial submission was had on the same two counts.
From the judgment for defendant, the plaintiff has appealed to this court.
Considering the assignments of error in the order in which they are arguеd by counsel for appellant, the first question presented is in regard to the trial court’s action in sustaining the demurrers to Count A of the complaint. Said count in terms-avers simple negligence — that is, initial negligence — and when its averments are construed most strongly against the pleader, they show plaintiff’s intestate to have beеn a trespasser on defendant’s tracks, to whom the defendant owed no duty other than not to negligently injure him after his peril was-discovered by the . agent or servant in charge of the locomotive, or not to wilfully or wantonly injure him. Rush v. Central of Ga. Ry. Co.,
Appellant does not assert that Count A was not subj ect to the demurrers interpоsed in so far as that count charged defendant with initial negligence, but argues that since the charge of simple negligence embraces-a charge of subsequent negligence, it was-reversible error for the trial court to sustain the demurrers to said count.
It is true that recovery may be had' for subsequent negligence under а count for simple negligence — that is, a count charging initial negligence. Louisville & N. R. R. Co. v. Abernathy,
But when the plaintiff sues a railroad for injuries and relies upon sirriple negligence, it is incumbent upon him .to aver and prove a relationship that would render the defendant liable for initial negligence; that is, that he was not a trespasser, аnd where, construing such a complaint most strongly against the pleader, it appears that the injured person was a trespasser at the time of the injury, the complaint is bad as against apt demurrer. Gadsden & A. U. Ry. Co v. Julian, Adm’r,
The following quotation from the opinion in Central of Ga. Ry. Co. v. Blackmon,
Moreover, no injury could possibly have been done plaintiff by sustaining demurrers to Count A for the reason that any evidence admissible under that count on the theory that it embraced subsequent negligence was admissible under Counts C and D, which charged subsequent negligence and upon which the case went to the jury. Likewise, any evidence that would authorize a recоvery under Count A would authorize a recovery under Counts C and D. Bessierre v. Alabama City G. & A. R. R. Co.,
On the first appeal, we reversed the judgment of the trial court on the ground that the defendant was entitled to the general *321 affirmative charge as' to the' counts charging subsequent negligence, the only counts upon which the case was submitted tо the jury.
On the second trial, the one here under review, the evidence was in all material respects the same as that produced on the first trial, except for the additional testimony of two locomotive engineers, who testified on behalf of plaintiff.' Because of the testimony of the two locomotive engineers, the trial court permitted the case to go to the jury on Counts C and D, which charged subsequent negligence and which were the same two counts upon which the case was submitted to the jury on the first trial.
However, the trial court gave the general affirmative charge, with hypothesis, in favor of the defendant as to Count B, whiсh was a wanton count.
Appellant contends that the trial court erred to a reversal in giving the general affirmative charge, with hypothesis, in favor of the defendant as to the wanton count.
We will not undertake to delineate the evidence, inasmuch as most of it is set out in detail in the opinion on former appeal. Birmingham Southern Ry. Co. v. Kendrick,
Even if it be conceded that the evidence has any tendency to support a сharge of wanton conduct on the part of the defendant’s servants, agents, or employees in charge of the locomotive, the finding of the jury in favor of the defendant on the counts charging subsequent negligence was necessarily decisive of the issue against plaintiff under the Wanton count also, and the withdrawal оf the count from the jury by instruction was error without injury, if error at all. Helms v. Central of Ga. Ry. Co.,
The question in this case on the subsequent negligence counts was not what the locomotive was doing before or when the plaintiff’s intestate was discovered on the track, but what those in charge of the train did after the discovery of the peril of the plaintiff’s intestate. That was the same question presented by Count B, the wanton count, under the facts of this case. True, we have a line of authorities holding that railroads may be guilty of wanton negligence in running trains at a dangerous rate of speed, without warning or keeping a lookout at certain points where it is knоwn to the enginemen that people are liable to frequent to the extent of making it consciously dangerous to disregard their safety. But this rule applies to densely populated sections, and not sparsely settled sections like the place where the plaintiff’s intestate was killed. Whitehead v. St. L. & S. F. R. R. Co.,
In this ease the jury, upon consideration of all the evidence, has determined that after the discovery of intestate’s peril, the servants of the defendant committed no act of simple negligence which proximately caused the intestate’s death. This being true, there could not, under the law, have been, after the discovery by them of plaintiff’s intestate’s peril, such an act of willful neglect on the part of defendant’s servants as amounted to wantonness. Helms v. Central of Ga. Ry. Co., supra.
The decisions in McNeil v. Munson S. S. Line,
On the trial, plaintiff moved to challenge for cause several of the jurors whose names appeared on the jury list from which the trial jury was selected. The challenge for cause was in the following language: “We wish to challenge for cause each and every juror, separately and severally, employed by the Tennеssee Coal, Iron & Railroad Company, it being stated by one of the jurors in open court that for the last fifteen years the Birmingham Southern Railroad Company is a subsidiary of the Tennessee Coal, Iron & Railroad Company. And it is on the ground that we make the motion.”
The challenge for cause was overruled and appellant asserts here that such action by the trial court constitutes reversible error.
An employee is incompetent to serve as a juror in a cause involving the interest of the employer and is, therefore, subject to challenge for cause. Louisville & N. R. R. Co. v. Cook,
But we do not reach a decision on that question, for it was not established that there was any such relationship between the defendant, Birmingham Southern Railroad Company, and the Tennessee Coal, Iron & Railroad Company, the employer of the challenged jurors. True, one of the prospective jurors stated: “Judge, I am an employee of the T. C. I. Corporation, and that is a subsidiary of the Birmingham Southern Railroad Company.” But on further questioning of this juror, it was made to appear that he hаd no personal knowledge of any such relationship and that his statement in that respect was based on mere rumor. Counsel for plaintiff offered no proof of such relationship, nor was request made of the court that an opportunity be given counsel for plaintiff to make such proof. Such relationship was not admitted by the defendant. We are constrained, therefore, to hold that the trial court did not err in overruling the challenge for cause. A person selected and returned as a juror is presumed to be qualified and competent to serve and the burden is on the challenging party to show the contrary. It will not be prеsumed, in the absence of sufficient evidence, that a juror is prejudiced or otherwise disqualified. Van Derslice v. Merchants Bank,
It is without dispute that intestate was a trespasser at the time and place where he met his death. Hence, there was no duty resting on those in charge of the locomotive to be aware of his presence on the track at the time and place where he was killed, nor was there any duty on them to maintain a lookout for any person at that place. Charges 6, 7, 8, 9, 21, and 22, given at the request of defendant, so instructed the jury. They were given without error. Alabama Great Southern Ry. Co. v. Fulton,
Charge 10, given at the request of the defendant, is in most respects similar to Charges 6, 7, 8, 9, 21, and 22, but appellant insists that the giving of Chаrge 10 was reversible • error in that it assumes a fact contrary to the evidence, namely, that plaintiff’s intestate was dead when he was discovered on the track before he was hit by the train. We think the charge fairly refers to the intestate after the train had stopped and he was found’ lying between the rails under one of thе cars. But in any event, the giving of this charge was not reversible error, since any misleading tendency could have been corrected by an explanatory charge. Forst v. Leonard et al.,
Under the pleadings and evidence in this case, those in charge of the
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locomotive owed intestate no duty until they had actuаl knowledge of his perilous situation. Newman v. Louisville & N. R. Co.,
Appellant contends that it was-reversible error to give charge 16 requested by the defendant, in that it is based on a rule of conduct of the agents or servants of the railroad company, after discovery of peril, which does not measure up to the standard of conduct and duties required by law in that the charge shows as the duty of the said servants or agents after discovery of peril only “the employment of preventive means at hand,” while the law requires the employment “of all the preventive means at hand known to skillful employеes engaged in like conduct.”
The law is well established that when an agent or servant in control of an engine or car discovers a person in peril upon the track of a railroad, he must resort to all preventive means known to skilled persons engaged in the management or control of trains, engines, cars, etc., to avert injury. Manley v. Birmingham R., L. & P. Co.,
Charges 25 and 26 given at the request of the defendant might well have been refused on the ground that they are argumentative. However, we do not think that the giving of said charges constitutes reversible error.
Under the issues of this case, the trial court might well have refused to give charges 17 and 18, although they contain correct abstract propositions of law. But we do not think that, in view of the evidence in this case, the giving of those charges constitutes reversible error.
Likewise charge 2G might well have been refused, but we are unwilling to predicate a reversal of this case on the giving of that charge.
The judgment of the trial court is affirmed.
Affirmed.