131 Ala. 269 | Ala. | 1901
When this case came on for the trial from the judgment in which this appeal is prosecuted, the complaint contained eight counts. Of these counts, 2 and 6 charged the reckless and wanton killing of plaintiff’s intestate by the employes of the defendant. Other counts ascribed the death of the intestate to the negligence of defendant’s servants in the operation of a locomotive and train of cars. The defendant “for plea and answer to the complaint as a whole, and to each count thereof separately,” filed pleas 1, 2, 3, 4 and 5. Plea 1 is the general issue. Pleas 2 and 3 are pleas
It follows that on the record before us it is to be taken that, assuming plaintiff filed demurrers! to defendant’s pleas of contributory negligence and of contributory wantonness, no ruling was had upon them, but that they were abandoned, and that the plaintiff took Lsue upon each of said pleas. — Elyton Land Co. v. Morgan, 88 Ala. 434; Mortgage Co. v. Inzer, 98 Ala. 608; Alabama National Bank v. Hunt, 125 Ala. 512, 519; Birmingham Ry. & Elec. Co. v. Baker, 126 Ala. 135.
And it is of no consequence that these pleas presented an immaterial issue under the second and sixth counts upon which the trial was had. We are constrained by the record to the conclusion as matter of law and fact that the plaintiff took issue upon each of them. This made them material and defendant was entitled to judgment if any one of them was proved. — Williams v. McKissuck, 125 Ala. 544; Boman v. Rosser, 123 Ala. 641; Glass v. Meyer, 124 Ala. 332; Wellman v. Jones, 124 Ala. 580; Breitling v. Marx, 123 Ala. 222; Marbury Lumber Co. v. Westbrook, 121 Ala. 179.
So far we agree with the argument of appellant’s counsel. But we cannot admit the correctness of their further insistence that these pleas were proved, and that, of consequence, the affirmative charge requested by defendant should have been given. No one of the pleas was proved. To •saj'- the most it was for the jury to determine whether Mrs. Martin, the intestate, was guilty of negligence which proximately contributed to her death, as averred in the second and third pleas, or of reckless and wanton, or willful exposure of her person to- the peril from which she suffered death, as averred in the fourth and fifth pleas. Under these latter pleas on the evidence it was clearly a matter for inference on the part of the jury whether Mrs. Martin went inadvertently upon the track unconscious of the approach of the train, or seeing or hearing the train approaching judged that she could cross safely in front of it and attempted to do so, or, possibly, that she made the attempt in a
Recurring to pleas two and three, it is to be conceded that the evidence without conflict and without affording ground for any contrary inference establishes that Mrs. Martin in g’oing upon the track in front of the engine was guilty of rashnessi and negligence such as would bar recovery by plaintiff in this action, if her want of due care contributed in a legal sense to her death, as is alleged in each of these pleas. But it is just upon this point — whether Mrs. Martin’s proven negligence proximately contributed to her death — that the evidence before the jury afforded bases for diverse inferences deducible by the jury. On the one hand, it was open to them to find that defendant’s servants in charge of the engine and cars did all in their power to avert the disaster after they became aware of Mrs. Martin’s peril; and so finding they should have further found under these pleas that her death was the result in part of her own negligence. But on the other hand, there was evidence that when the engine was seventy-five feet from the crossing, over which Mrs. Martin attempted' to pass, the engineer discovered her fifteen feet from the track, approaching it and evincing a purpose to cross it ahead of the engine, that the engineer gave no signals of approach, and that he made no effort to stop his train or to check or lessen its speed until after the engine had reached the point of her attempted crossing, and run against her and inflicted the injuries of which she died. There was also evidence from which the jury might have inferred that had the engine been reversed, the track sanded and the brakes applied when the engineer discovered her peril, the speed of the train would have been sufficiently checked and decreased before the crossing was reached to have enabled her to cross in safety, as it required hardly a moment o'f time more than she had for her to escape. The jury having the right to find in line with these tendencies of the evidence, and sio finding, their further conclusion necessarily
The further argument of appellant’s counsel is addressed to the proposition that there was no evidence before the jury tending to show the recklessness and wantonness on the part of defendant’s servants charged in counts two and six, upon which the trial was had, and that therefore the affirmative charge requested by defendant should have been given under the plea of not guilty. When this cause was last before us it was ruled, upon a consideration of the evidence as to the character of the place where Mrs. Martin was stricken, it being the main crossing of the railroad in and between the two halves of a .town of five Jiundred inhabitants, the extent of its user by the people a® a crossing, etc., etc., the speed of the train, etc., that the inquiry was wantonness vel non was for the jury and not for the court, Memphis & Charleston Railroad Co. v. Martin, 117 Ala. 367, 383-5. We adhere to that ruling on the grounds upon which it was then rested and upon the further ground that it was open to the jury to conclude from evidence adverted to above in another connection that
The assignments of error not covered by the foregoing opinion are not discussed in the brief of appellant’s counsel, and we therefore do not consider them. — -Kenan v. Lindsay, 127 Ala. 270; Henry v. Hall, 106 Ala. 84; Louisville & Nashville Railroad Co. v. Morgan, 114 Ala. 449, 456; Williams v. Spraggins, 102 Ala. 424, 431; Ward v. Hood, 124 Ala. 570; Syllacauga Land Co. v. Hendrix, 103 Ala. 254.
Affirmed.