South & North Ala. Railroad v. McLendon
63 Ala. 266
Ala.
1879
Check Treatment
STONE, J.

An action on the case is the proper remedy for a personal injury, not directly produced, but consequent on the negligent conduct of another. It is equally the remedy for a nuisance, causing individual wrong, which is the consequence of some unauthorized act or omission of another. There is this wide difference in the two classes of cases : In the former, the tort or wrong, from which the injury results, expends its force and vitality at once, and there is no repetition or continuance of the wrongful act, although the injurious consequence complained of may be of lasting duration. A nuisance is a continuing wrong, each day of which, being an independent wrong, furnishes an independent cause of action. On this account, the rule and measure of recovery in the two classes of cases is essentially different. In most actions for injuries caused by a nuisance, there can be no recovery for injury suffered after commencement of the suit; for such injury, being a new and independent nuisance, wiil support another action. But, when the injury is to the person, and the wrong which causes it is not continuous in its nature, then there can be but one action for its redress, *273no matter how permanent or lasting the disability, pain or suffering may be. Hence, in such action, the party injured may recover in one and the same suit compensation for the disabling effects of the injury, -Whether past or prospective. •In estimating the damages, the jury may consider the expenses of the cure; and if the injury is permanent or irremediable, or will require future treatment or nursing, the proper costs of this may be added. And the loss of time up to the verdict, and probable loss, or incapacity to do as profitable labor, in the future, and physical and mental suffering proximately caused by the injury, are, when established to the satisfaction of the jury, pertinent and legitimate factors in making up the sum of the damages which the jury may award to the plaintiff. — Barbour Co. v. Horn, 48 Ala. 566, 577; 2 Redf. on Railways, § 199, par. 9 ; Stein v. Burden, 24 Ala. 130; Polly v. McCall, 37 Ala. 20; 2 Greenl. Ev. § 267; Pym v. Gr. Northern Railway Co., 2 Best & Smith, Q. B. 759; Fair v. London & N. W. Railway Co., 21 L. T. Rep. 326; Sanders on Negligence, 237; Snedicor v. Davis, 17 Ala. 472.

3. Another important inquiry in this case is, can there, .in this form of action, be a recovery for an amount beyond the actual injury sustained, measured by a pecuniary standard, or can the jury give exemplary, or punitive damages ? And if the latter, under what conditions can they be imposed? In Barbour County v. Horn, 48 Ala. 577, which was an action •on the case for injury to the person, caused by negligently permitting a public bridge to remain out of repair, or for not requiring a proper bond from the builder of the bridge, this court first pronounced that the complaint was insufficient, and that there could be no recovery upon it as it then stood. Supposing the complaint might be amended, the court proceeded to discuss the question of the measure of damages, and said, “ In such a case as this, there can be no vindictive damages.” The opinion does not disclose why there could be no vindictive damages in that case. We do not think it was the intention of the court to affirm, that vindictive damages can in no case be recovered, for an injury caused by the negligence of another; for, in the same opinion, it is said, “ Where there is no malice connected with the wrong complained of, or such gross negligence, or oppression, or fraud as amounts to malice, the compensation, or amount of damages, should be confined to the actual injury and its immediate effects upon the person of the plaintiff, when the action is for harm to the person, which seems to be the case here.” We suppose the meaning of the court was, that the very nature of tbe charge of negligence, imputed to the county *274in that case, repelled all idea of gross negligence, and, therefore, there could be no vindictive damages.

In Sedgwick on Damages, 3 ed., 477, it is said:. “ Where gross fraud, malice, or oppression appears, the jury are not bound to adhere to the strict line of compensation, but may, by a severer verdict, at once impose a punishment on the defendant, and hold up an example to the community.” In a note, maDy authorities are cited in support of this principle. Eor an injury resulting from mere negligence, only compensation can be recovered. But, when the negligence is so grosses to show willfulness, wantonness, or recklessness, or a grossly careless disregard of the safety and welfare of the public, then punitive or exemplary damages inay be awarded, in the sound discretion of the jury.

In Day v. Woodworth, 13 How. U. S., Justice Grier said : “ It is a well established principle of the common law, that in actions of trespass, and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offense, rather than the measure of compensation to the plaintiff. . . By the common, as well as by statute law, men are often punished for aggravated misconduct, or lawless acts, by means of a civil action, and the damages, inflicted by way of penalty or punishment, given .to the party injured.”

Vicksburg and Jackson Railroad v. Patton, 31 Miss. 156, was an action against the railroad company for killing cattle, the property of plaintiff, through the negligence and' inattention of the employees of the railroad, the bad condition of the track and the rolling stock, and the insufficiency of the appliances for speedily stopping the train. There was a recovery beyond the value of the cattle killed. The court said ; “ The question of gross negligence, or wanton mischief, was distinctly submitted to the jury, and was a material part of the case; and whether we consider it with respect to the bad condition of the track, and the absence of appliances and fences necessary for its safe operation, or the unfitness and recklessness of the engineer, it is plain that the jury were at liberty from the evidence to find that the injury was occasioned, either by the gross neglect of the company, or the wanton mischief of the engineer. That was a question which they had the right to determine; . . . and it is immaterial whether the jury thought there was gross neglect, or willful mischief. The rules above stated apply equally to either state of the case, and would warrant the jury in finding exemplary damages, if the circumstances of neglect or aggravation tended to justify it, and they thought fit to *275award it.” And the court quoted approvingly the language of Lord Denman in Lynch v. Nurdin, 1 Q. B. 29 “ Between willful mischief, and gross negligence, the boundary line is hard to trace •: I should should rather say, impossible. The law runs them into each other, considering such a degree of negligence as some proof of malice.” See, also, Sav. & Memphis R. R. Co. v. Shearer, 58 Ala. 672, 680; S. & N. R. Co. v. Sullivan, 59 Ala. 272. We hold, thete is no inflexible rule, which denies to plaintiffs, injured by the negligence of another, all right to claim punitive, exemplary, or vindictive damages, or smart money, as it is severally phrased in the law-books. It depends on the degree • of the negligence, whether simple or gross; and the jury are judges of the de gree, under proper instructions from the court; and the application of the rule must always depend, more or less, on the circumstances of the case. — Shearman and Bedf. on Neg. § 600; 2 Redf. on Railways, § 199, par. 9; Roberts v. Heim, 27 Ala. 678.

4. The first charge asked by the defendant, was rightly refused. It assumes, as matter of law, that there can be no recovery beyond the actual injury sustained. It should have been left to the jury to say whether or not the negligence was gross. If it was, the jury, in their prudent discretion, were permitted to go beyond the boundary of mere compensation. The second and third charges asked assert the proposition, that the defendant corporation can not be held liable for the injury, unless knowledge of the defect in the bridge was brought home to it. This is not the rule. The corporation should have employed watchful diligence in keeping the bridge in proper repair; and is charged with a knowledge of every defect such diligence would have discovered. If the testimony be believed, the defect which caused the injury complained of, was plainly patent. Charges 2 and 8 were properly refused; and the general charge given by the court of its own motion is in accordance with the views expressed above, and is free from error,

5-6. Some of the answers of the witnesses are clumsily expressed; but, properly construed, we think they are free from error. We note the following: “ In consequence of loss of time, and physical disability from the injuries, she had been prevented from earning money by her labor, and she had been injured fifty dollars within the four months next after the fall from the mare, by reason of and in consequence of the hurts'caused by the fall from the mare.” This is, in substance, an assertion that her labor, during that time, would, have been worth fifty dollars. — Parker v. Parker, 33 Ala. 459. “ The plaintiff seemed to be suffering during the *276time she stayed at Mrs. Griffin’s.” This was the day after the injury. “ The plaintiff was not able to return from Mrs. Griffin’s on Wednesday, to the residence of plaintiff.” The fall and injury were on Tuesday. “That plaintiff was not able to use her arm a large part of .the time for several months after she fell from the mare at the .bridge.” • “ That when the plaintiff returned from Mrs. Griffin’s, on Thursday, after falling from the mare on Tuesday, the left wrist of plaintiff looked like the bone had slipped off the joint.” “ That .when plaintiff returned from Mrs. Griffin’s, she looked bad.” “ That plaintiff was disabled by the fall from the mare.” All these are but facts, or, at most, conclusions of fact; awkwardly expressed sometimes, it is • true; still, we find in them nothing to which a witness may not testify. Bennett v. Fail, 26 Ala. 605; Wilkinson v. Mosely, 30 Ala. 562; Milton v. Rowland, 11 Ala. 732; Fountain v. Brown, 38 Ala. 72; Barker v. Coleman, 35 Ala. 221; Stone v. Watson, 37 Ala. 279. “ The true line of-distinction is this : an inference, necessarily involving certain facts, may be stated without the facts, the inference being an equivalent of a specification of the’facts: . . In other words, when the opinion is the mere short-hand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based.” — Whar. Ev. § 510; Raisler v. Springer, 38 Ala. 703; Avary v. Searcy, 50 Ala. 54.

7-8. The general charge is made up of several propositions. There was a general exception to thq whole of it, without indicating any particular part as objectionable. It is here urged, that one clause is faulty, in that it assumed the road crossing the railroad, on which the injury was suffered, was “a public dirt road,” without submitting that inquiry to the jury. We incline to think this was a fact so proved as to be one of the conceded facts in the case, upon which the court was authorized to charge without hypothesis. — Kirkland v. Oates, 25 Ala. 465. But the exception was not sufficiently specific. .It should have clearly pointed to the clause objected to, so that the court might have the opportunity to set itself right, or that opposing counsel might consent to its withdrawal, or modification. — 1 Brick. Dig. 342, § 99; Johnson v. McGehee, 1 Ala. 186; Irvin v. The State, 50 Ala. 181; Trenier v. Stewart, Sup. Ct. U. S., October term, 1879.

If the damages in this case are excessive, the remedy is not with us. Complaint is frequently heard, that juries assess excessive' damages against railroads. It is to be hoped such complaints are unfounded. While railroads should be managed with great skill and circumspection, *277because of tbe immense peril of their unskillful or negligent ■ handling, they should not, for their derelictions, be mulcted-more heavily than individuals would be for similar faults in matters of like magnitude. — See Tanner v. Louisville & Nashville Railroad, 60 Ala. 621.

The judgment is affirmed.