60 So. 740 | Ala. Ct. App. | 1912
It is said that 65 per cent, of the cases now pending in the states of the Union are damage
Out of respect to the above situation — as a large percentage of appeals from the judgment of trial courts in such cases come within the'jurisdiction of this court— we undertook, in the case of Birmingham Water Works Co. v. Martini, 2 Ala App. 652, 56 South. 830, to define and explain the office of a special action of trespass on the case and to declare what, as actual damages, was recoverable in such action. As the question as to when and why exemplary damages may be allowed in such actions was also constantly recurring in this court, in the case of Birmingham Water Works Co. v. Keiley, 2 Ala. App. 629, 56 South. 838, we undertook to declare the true rule which should govern all courts Avhen, in such an-action, the plaintiff claims such damages of the defendant. The above cases, when read together, will, we think, fully illustrate our views as to the 1¿av upon the above subjects. See, also, B. R. L. & P. Co. v. Murphy, 2 Ala. App. 588, 56 South. 817; Bigbee Fertilizer Co. v. Scott, 3 Ala. App. 333, 56 South. 834.
It does not matter how skillfully a plaintiff may state, in his complaint, a cause of action for simple negligence against a defendant, he can recover nothing for such negligence, unless, when the trial is had, he offers some evidence of the negligence charged in the complaint, and that the plaintiff was injured by such negligence. It does not matter in what terms, in his complaint, a plaintiff claims of a defendant, in such an action, exemplary damages, he can recover nothing, if he fails to offer some evidence from which a reasonable inference can be drawn that the wrong complained of was perpetrated under such circumstances as would justify a jury, within their discretion, in awarding exemplary damages.
In such a case, regardless of the allegations of the complaint, the subject of exemplary damages, in the absence of any evidence authorizing their imposition, should not be submitted to the jury. It is a familiar proposition that, when a defendant is charged with murder, malice may be presumed from the use by the defendant of a deadly weapon in the commission of the homicide, unless
On the subject as to what occurred when the train reached Gracies and after it left that point, we quote the following from the testimony of appellee: “The train stopped at Gracies what might be called a quarter of a minute, something like that. I started to get off. I made preparations before the train stopped, and told my wife to have the baby ready. The baby is one year old. When the train stopped, I had started before the train stopped, and we made our start for the front of the car, and it was crowded between the front of the car and not so badly crowded at the back; but the door at the back was locked, and we made our way out the front of the car where the others had got off at the other stops before. We got something like between five and six seats, maybe three seats or five, I did not pay any particular attention to it, before the train started. That was something like two-thirds of our way to the door. When the train started, I kept pushing my way to the front of the train until I saw the train had its sway in
We Lave quoted extensively from appellee’s testimony as it appears in the bill of exceptions, for it is upon that testimony — the facts as testified to by him and the reasonable inferences to be drawn from those facts — that his right to have the question of exemplary damages submitted to the jury in this case depends. Admitting the truth of every quoted word of appellee (and he was corroborated by his witnesses in many ways in the above statement, and was also contradicted in many ways by appellant’s witnesses), was the subject of exemplary damages properly submitted to the jury? Was there any evidence in the case which justified the submission of that subject to the jury for their consideration?
This is true, as a general rule, of every special action of trespass on the case. No two are, speaking generally, exactly alike, and the facts of each must and do declare the rules which shall be applied to those facts.— Birmingham Water Works Co. v. Martini, supra; Birmingham Water Works Co. v. Keiley, supra. The facts in the present case are, in several important particulars, entirely unlike the facts in the above two cases, and for that reason, and for that reason only, some of the rules, perfectly sound when applied to the facts of those cases, cannot be applied to the facts of this case without violence to the law itself.
In the case of Louisville & Nashville R. R. Co. v. Dancy, supra, the conductor was unable to stop his train at the station because the brakes would not work, but continued his efforts to stop, and did stop the train about a mile from the station. The question as to whether the plaintiff, in that case, then voluntarily left the train, or whether she left it under the orders of the conductor at that point, was in dispute. Under the facts of that case, the Supreme Court held that, “when the train ran past the station and stopped, it was the conductor’s duty
In the instant case, there Avas no circumstances indicating oppression; nnkindness, ill will, insult, or reckless indifference. Viewed in its most favorable light to appellee, his evidence shows that, after he informed the flagman of the circumstances, he asked the flagman if he could not stop the train, and the flagman told him that he could not. That Avas all, and appellee was carried, not to a small station, but into the city of Birmingham. The train was a mile and a half from Grades Avhen the above request was made, and was then running at its accustomed rate of speed. It is a matter of common knowledge that every well-regulated railway system has, on each of its divisions, a train dispatcher, who keeps, by constant telegraphic correspondence, in touch Avith every train on his division. He knows where every train is, the rate, or about the rate, at Avhich it is traveling, Avhen it leaves a station, and when it will reach the nest station on the line. The arrival at and departure from stations of each train is made dependent upon the known movements, speed, and place of every train upon the division. The safety of the traveling public — human life — depends upon all this; and the emergency should be great indeed that would justify the conductor of any train, and especially a train filled with human beings, upon any well-regulated railroad, in stop
The only count in this case alleging willfulness or wantonness, which went to the jury, and which involved the subject of punitive damages, was the count in which the claim to such damages was based upon the failure or refusal of appellant’s servants to back the train to Gracies station after the station had been passed; and under that count the appellee was not, under the facts set out in the bill of exceptions, entitled to exemplary damages.
Reversed and remanded.
Note. — The foregoing opinion was prepared by Judge de Graffenried' while he was a judge of this court, and ■ is adopted by the court.