*1 4Ó2 causing the
fаcie, the disease nature of death of insured.” charges involved here The refusal of justified ground cer- with not inconsistent death is tificate of rupture of accident caused claim produced abscess, gangrenous death. instruction entitled to Defendant was statute, stronger viz. terms than no presumptive evidence
such certificate coupled a statement with only prima facie. presumption was weigh position inbe then physician with evidence in connection pro charge, this condition effect that peritonitis fatal rupture with to a ceeded effect. charges effect do not state These only pri- presuiqption, conclusive or whether ma facie. au- Charge properly refused 58 was State, thority Ala. Brown v. 268. argu Charge properly refused as 59 was
mentative. out, judgment pointed For error remanded. cause reversed and remanded.
Reversed and ANDERSON, J., C. GARDNER
FOSTER, JJ., concur. 60)
(129 So. R. CO. WILLIAMS. & O. MOBILE
Supreme Alabama. Court May 22, 1930.
Rehearing June Denied *3 McLeod, Stevens, McCorvey, & Turn- Goode Mobile, appellant.
er, of *4 Harry Caffey, Mobile, T. Smith &
appellee. FOSTER, J. appeal This On is the third in this case. first, error was confessed. second reported So. 722. report appeal
facts shown in
last
are in substance shown on this and additional
opinion.
evidence
referred to
*5
appellant’s
appeal,
that,
On this
as on
press
proof
counsel
their
contention that
justify
does nоt
an inference of
proximately causing
intestate,
the death of
only
conjecture
but
Of
that effect.
conjecture
only proper
course if a
is the
result
justify
evidence,
the.
it is not sufficient
fully
negligence.
an
appreciates
This
inference
court
clearly
claim,
has
so
and
analyzed
it,
stated
and
distinction.
Ry.
481,
Dickson, 211
Southern
Ala.
Co.
486,
difficulty
-only
100
665. The
in
So.
such case is to
whether
facts
determine
or a
afford a reasonable inference
jecture.
mere con
in
The accident
this case occurred
involved
daylight.
cars in
full
There were ten
movement which resulted in
disaster.
position
The blоod
of the
stains and
mutilat-
body
ed
were
such as
show that
occurred
by gondola,
rail,
on the west
was
end toward which direc-
from the south
third
began. The evidence
tion the movement
checking
had been
that deceased
shows
book,
his
shows
and
book
he had
In his
cars
gondolas and
in-
the three
had
not checked
only one
seal numbers of
of the
serted
Holder, the
at the south end.
switch-
box ears
man at the south
end, walked down
on
up
and
to that end
around it and
side
west
on
inspecting
couplings
side
and
the east
obstructions,
everything
and
see
right. He looked underneath the cars
Appellant’s
them.
and between
counsel
figures
they
from
brief call attention
argue
“it can be determined with
mathe-
very
certainty,
little,
that there was
matical
if
space
any, ground
between the
rails that
McKenna,
his
within
view.”
was not
yardmaster,
had control
cars
re-
and
signal
the forward
from Holder
and
ceived
relayed
(cid:127)
ground
He
on
it.
west
pretty
says
good
cars,
he “had a
view of
was,
suppose,
I
cut of ears.
It
the whole
407
(cid:127)
begun
eight
I
un-
end that
that the movement
not have
that south
or ten feet of
*
**
checking.
completed
under
til deceased had
I
see
his
could
could not see.
except
cars, everything
wheels
what the
yardmaster, McKеnna,
If
who
says
seeing.”
journals kept
He
me from
train,
then had control of
knew that
legs
other
of Holder
he could see the
duty
cars,
of decedent was to
check the
along
them.
walked
cars as he
side of the
perhaps
coupling
air,
aid
and that
two,
inference
that between the
So
doing so it was not unusual
in ai dan
be
they
completely
and between
under
could see
gerous position
moved,
if
cars
that he
couplings
cars,
behind the
and before'and
might
crossing
to check the seals on both
they
look,
journals,
care
did
and
fully,
and that
sides,
duty
his
it was
not to start
the move
near
not see deceаsed at or
and did
ment until due care had been observed to
McKenna
at
the time.
cars or elsewhere
engaged.
see that decedent was
Rea
engine
off.
as it moved
boarded
requires
sonable care
conduct commensurate
started, caught
movement, apparently, as it
danger
reasonably appre
with the
to be
of the third
deceased under the wheels
Young,
hended.
&
Louisville N. R. R. Co. v.
conjecture
think it mere
last car.
do not
551,
213;
168 Ala.
53
& N. R.
So.
Louisville
say
deceased
cars started
to
was
that when the
Davis,
487,
552;
R. Co. v.
8
So.
position;
dangerous
he was en
C. J. 456-458. He should exercise due care
cars;
duty
gaged
checking
in his
injurious consequences
to avoid
em
to an
look
did not
Holder and McKenna either
ployee who,
discharge
duties,
in the
of his
they
they
they did,
or
or else
could
claim
dangerous place,
to be
if this was
position.
dangerous
have seen such
superior.
458,
known to his
39 C. J.
Shelton,
Ala.
Southern R. Co. v.
394; Shirley
Ry. Co., 198 Ala.
v. So.
superior
knew the
of dece
50 Nixon, Ry. Chesapeake v. 271 U. S. Ohio 70 & Allen, 165, v. U. R. R. Co. 276 S. 48 W. S. Ct. 914, 495, 218, were L. Ed. the facts 46 S. Ct. 215, L. Ed. 513. 72 employment foreman whose that a section complaint, therefore, go obliged examine track which to over and the 3 him Count pur- duty inspection. in use due care For that to re- tour of was on a pose refers spect, velocipede rails. the also refer to the cirсumstances a fitted to he used necessary require by to train and killed. the observ- a The are was overtaken which He written, engineer care, though, charged and it was that the of such ance haye lookout; by justified was said on not on the what for- of the train were been fireman and proof appeal. was held The rule should have been more It was to effect. mer sufficiency duty clearly which the was one railroad at that time. The stated ,of might urged appeal, company owe to others but not toward on this and 3 count reverse, employees to which the deceased on class of not therefore ac- the its we would count. recovery belonged; for his death was made on a statement we former But the
409 money 1926, pacity 2, Providence & Wor- of in on March reversed. In v. Mobile O’Donnell 211, person Co., I. it held the hands of a without education R. cester Railroad training. objection, right general giving to one of action and grounds, The besides a statute a that injured by upon neglect a railroad com- is based of because it training pany ing ring mak- bell before want of education and such mat- the locomotive ter, designed highway crossing for exclu- because it evidence of con- a calls crossing 2, 1926, sively persons on March the dition rather than on the for benefit of walking injured highway, trial. while date and one crossing along could not re- track a not at Chesapeake It & is said in the case said The court under the statute. cover Kelly, 485, O. R. R. Co. v. U. S. 36 Ct. S. I.): (page 214 of 6 R. 633, 367, 1917F, L. 60 L. Ed. R. A. “ any duty violated ‘If defendants have damages measure in cases by owing plaintiff, and from them to under the federal act must be settled accord consequence violation means or ing general principles of law as adminis right injury, plaintiff compensation has he at the has suffered courts, tered the federal and in that case damages hands of damages the computation compensate measure of its method injury. In the lan- for such defendants damages are stated. The against books, guage him lies an action deprivation for the of the reason ought by neglects law he who to whether the mon to do that which prospective pecuniary able benefits that, 335) do, (1 265; Salk. Vent. would have resulted from the continued life existing duty at com- be one of decedent. law, In imposed statute. or be one up by It must therefore be made tak recovery order, however, not suffi- it is ato ing earning power money. account of the obligation duty or cient that some That there must be donе what a reasonable defendants, neglected by but have been must man would do under circumstances re duty neglect or of some 'have been damages, by putting duce the amount of the damages obligation for himto who claims money earning at interest. The value of upon Digest, neglect. Comyns’ Action 1In money in the hands of a reasonable man must every Statute, said, E, where case “In it is control; sagacious not one is so who as to thing prohibits statute or enacts yet returns, igno earn enormous rant as not to the hands of an nor one so remedy person, have a shall benefit of a he earn its be able tо real value thing upon enacted statute for the same average man. The standard recompense advantage, for the or for his damages cannot be fixed or affected law,” contrary wrong said him done to intelligence fortuitous condition of of some or confining remedy things as are en- to such all the beneficiaries. ” suing.’ person acted for the benefit of dependents In this case some of the mi charge court in the oral instructed nors. The court not assume that could their respecting of railroads un guardian ignorant would also be and incom Safety .(45 Appliance der the Federаl Act petent. suggest nowhere authorities couple brakes, seq.) § UiSGA 1 et the air capacity part such test of of the de and that a failure to them under cir pendents is material. The in material applied cumstances to which the act was quiry earning capaci in that is the connection negligence as a matter law. ty money average person. locality in that the hands anof complaint Ry. There is no count Jones Kansas S.C. *8 alleges prox- Co., 307, that the decedent death of 143 La. 78 568. So. imately by caused a failure to the air inquiry The next is whether it is required by as brakes lation of such fore not law. Whether the vio- earning capacity money on the of the date of is was there- decedent, judgment. the death of or of the In case, an issue should not the following this connection we think the servations to the ob emphasized by calling have been tion the atten- pertinent. equal are The amount jury by of think the to it. AVe that so anticipated benefits between the date of charging jury they the were misled to the judgment his death and of the should be in prejudice appellant. Birmingham 93; Boyette of Allen v. verdict, cluded the culation of their for there could be no cal Ry. Co., 41, Ala. So. 210 97 So. annuity cash an value on bа Bradley, 370, 211 100 Ala. So. 647. v. The whole sis. amount should be included. charge 40, The court refused numbered but passed. Their due date has then Alabama gave charge charge 32. latter was the The Jones, [8], Min. R. R. v. 114 Co. Ala. 520 21 So. appeal, same 25 on former as numbered 507, Rep. only Am. St. is 62 121. It for those appeal. 32 and number the as on that 40 same judgment which are fall due after the to appeal that We said on that the court should annuity appropriate. an is deductions on basis given have of We think that the benefit them. judgment The amount should therefore be for an charge giving charge 40 was obtained equal pecuniary to the benеfits for the decedent and the 32. period the of between death objection appellant, judgment, Over the of the court of the date addition an appellee earning equal permitted to show the ca- amount to such benefits in the future áio way v. La. It has proper construction foreman. Simmons interest because for with they deductions Ry. Co., 405, & So. N. La. the date when 12. in advance of are received by a for the they been that as basis lived. The said this court have been had decedent damages liroper making principle of theory de- of “evidence of measurement the whole life, рrobable dependents get age, of in that, the the duration of habits the ductions when is means, health, dustry, earnings, skill, may put intelli lump sum, at the at interest be gence, deceased, and, earning money, capacity with an- and character the his rea the principal, expectations, portion sonable future like a the other & N. R. R. nual interest facts, the were admissible.” Louisville at the end of But, prior fund be exhausted the wil-1 Fleming, 51, 58, 125, expected Co. v. to the life of decedent. 128; money Liability Carriers, judgment 2 Roberts § for is Fed. on a the date rendered, which anticipating is no occasion for there judgment It is our future benefits. thеrefore therefore, judgment, It -is our de capacity earning inquiry to that the as permitted fendant that show been to have trial, money is date of referable to the expectancy engaged in the the life o£ one inquiry the amounts relates to such employed was in which business decedent may been as would have be ascertained assign Charge 21, average. less than the payable. thereafter given 35, same ment should have been theory. the fact that to We have referred by Su the federal state are controlled courts future fixed the amount court preme interpretation of Fed in the Court be ascertained beneBts at the definite sums to (45 Employers’ Liability 51- USOA §§ eral Act by jury 'the as the amount of contributions including meaning 59) respects, as its all au made in his life to his beneficiaries. measuring award of for rule binding and thorities do not make that damages. substance of have stated the determining fixed bene future method adopted. the court does rule it has Nowhere only fits. It as reason such benefits is question. with refer to taxes in connection No court in has done so. We do not feel ing ably expected future, have been had he learn, any state, far as we can live; continued to by what had been contributed justifiеd in blast only guide, figure him in life is but anot only subject, way we are bound as on which must be Likewise taken as absolute. way to follow laid federal out taken, only the tables must be so as said subject the same doc courts. We feel Kelly charge should not The court Case. in re trine spect control us that followed as they jury must use as an absolute prior judgment, to which interest guide (2 past Fed. contributions Roberts appeal. former We are there we referred on rore constrained to preme they soq.), Liab. et are §Car. 917 but hold, Su until federal pecuniary what material evidence as to rule, that the asserts different Cоurt charge, might been. The oral benefits have tax rate is immaterial. assign basis the nineteenth which is the ment, think violates this as well as other we Kelly Case, supra, opinion In the Michigan principles Cent. we discussed-. quotes Supreme another United States from 59, Vreeland, R. S. R. v. 227 U. S. 33' Ct. Co. annuity case, referring tables. Court It 192, Ed. 417. 57 L. jury said, in mak “In order to assist the estimate, ing The rule seems also to be affirmed such life and annui standard Supreme age ty tables, showing any probable States Court that at the United jury may apportion life, present the amount of the dam duration and the of a value ages dependents, annuity, competent but a ver between
life
But it
evidence.
ar
dict
does not
so should not be
do
held that the rules
be de
has never been
* * *
ground, when the
did
computa
rested on that
defendant
from
tables or
rived
ap
not
portion
the court
instruct
guides
judg
ask
the absolute
tions
ment and
White,
V.
S.
jury.”
it. Cent. R. Co.
238 U.
There
conscience
885, 869,
1433,
Ed.
Ann.
59 L.
35 S. Ct.
1916B,
competent
will show
evidence which
fore
Gulf, etc.,
limiting the ease of
long
Cas.
person
to live as
*9
176,
McGinnis,
R.
426,
U. S.
Ct.
age
Co. v.
228
33 S.
average
should
man of his
be
the
787;
p.
367; 2 Rob
L. Ed.
45 USCA
57
If he is afflicted with some or
and material.
Appellant
§
Liab.
931.
likely
life,
erts Fed.
of Carriers
ganic
to
his
cut short
that
disease
request in this
made
such
case.
no
be materiаl.
English
from
statute
the
also been held that the
The
which
has
life ex
It
required
engineers
jury
may
.
taken
the
to
pectancy
locomotive
federal act was
be
years
eight
apportion.
by
act
The federal
leaves this out.
evidence to be
less
the
shown
dependents
by
separate
average man,
adopted
damages are for the
insurance The
than the
jury
salary
ly.
sup
But,
experts.
in
where the
amount
even
states
is re
The
of their
is
damages,'
compensation
quired
apportion
posed
the
it is held to
to
to add
increase in
Ry. Co.,
Kansas
concern
the defendant. On that
v.
C. S.
143
be of no
subjeсt
to
Jones
La.
risk.
307,
568;
p.
45
said in the Central Vermont R.
it is
USCA
The same
78
“certainly
applied
supra,
Case,
by
not unless the de-
was
the same court
a rail Co.
rule
to
injured by may
negligence per se,
fendant can show that
such failure.”
the
proper,
has been
be
there was no count
Case, supra,
In the McGinnis
which attributed the death of
to
deceased
award,
jury apportioned
failure,
which was
the
such
and that
therefore the court
appeared
charged
jury
that one of
who
but it
them
not
have
as to such
any-
portion
just
a
was not entitled to
was allowed
thing.
failure. We had
shown that
directly
subject
from these cаses
It seems
counts which
to
related
may
damages;
jury
may
apportion
allege
duty
not
or
did not
to the
there was breach
defendant,
in
in order to
respect,
either event
proxi-
and
in
decedent
injured
complain,
in mately
show that he
must
caused his death. Our attention is
respect. Appellant has not undertaken
2,
some
allege
called to
counts
and
do not
this,
given charge
quo
therefore the
to show
No. 1 is not reversible error.
negligence
operating
modo
in
necessary,
the cars. This is not
counts are sufficient therefore to sustain
it is
nec
federal act
not
Under the
negligent operation
cars,
nature of
cluding negligence
in-
of the
negligence.
essary
plead contributory
It is
to
couple
in the failure to
action,
only miti
hut it
not
gates
defense to the
brakes,
negligence proximately
air
if such
plead
damages.
the rule
This is
plaintiff’s
caused the death of
intestate.
ing
Kansas
Alabama courts.
both in federal and
181,
Jones,
Ct.
C
36 S.
. R.
v.
U. S.
Co.
accuracy
more
have
we should
With
513,
943;
N. R. R. Co.
60 L. Ed.
Louisville &
stated,
effect,
appeal,
as we did on former
in
255,
93; People’s
Wright,
v.
80 So.
202 Ala.
aspect
that under no
the failure to
of the evidence could
Skally,
349,
Supreme Court of Alabama.
June 1930. (128 794) et al. et CITY OF DOTHAN
CARDWELL
al. v.
Supreme Court Alabama. May 15, 1930. Rehearing June Denied