66 So. 936 | Ala. Ct. App. | 1914
The case Avas tried on the general issue under counts A and B of the amended complaint. Count B of the amended- complaint, filed by the appel
Tbe record shows tbe following facts without material conflict: That tbe plaintiff, a man 70 years of age, while .traveling along a public road in a buggy with bis son and grandson, going from bis home to' Montevallo, a distance of about six miles, on a cold,' cloudy day in November, upon arriving at a little mining town called Aldrich, where tbe public road crosses tbe defendant’s railroad, some two miles from Montevallo, was impeded in bis progress by tbe defendant’s freight cars blocking tbe road crossing. No engine was attached to tbe train of cars, it having been detached and taken with the engineer and conductor in charge to some nearby coal mines, tbe flagman and brakeman having been left with tbe cars. One Harrison, a deputy sheriff, who was present, bad a conversation with tbe negro brakeman on tbe subject, and after this conversation tbe flagman and brakeman uncoupled tbe cars and with tbe aid of a pinch bar moved them so as to clear tbe crossing and permit tbe plaintiff to continue on bis journey. Tbe plaintiff was detained and unable to get over tbe blocked crossing for about an hour and six minutes. Neither tbe engineer nor tbe conductor, who were off with tbe engine at the coal mines, is shown to have
Count B of the complaint does not charge in terms that the injury was wantonly or intentionally inflicted, but charges that the defendant or its agents in control of and operating said train wantonly, willfully, or intentionally, by means of said cars, obstructed said highway for an unreasonable length of time, to wit, one hour and five minutes, and that plaintiff was thereby greatly delayed, etc., and caused to suffer the damages complained of. as a proximate consequence. The averments of this count, it will be seen, are not that the defendant’s agents intentionally injured the plaintiff, but that they willfully or intentionally did an act (i. e., left cars across a public road crossing), Avhieh resulted in plaintiff’s being injured. The count, it would seem, attempts to set up the facts relied on as constituting wantonness. The defendant’s agents charged with the act characterized as being willfully or intentionally done were the agents "“in control of and operating said train.” Clearly the charge is against the conductor and engineer of the train, as a matter of construction and common knowledge, as Avell as under the facts shown. On the facts shown by the record, to say that the injury was wantonly inflicted by -the defendant’s agents in control of and operating the train, it would be necessary to hold that a conductor or engineer, one or both, who cuts loose the engine from a train of freight cars and leaves the cars across a public road crossing for an hour and five minutes, while they go in the operation of the master’s business to a nearby coal mine to deliver or receive cars, is guilty of inflicting a wanton or intentional injury, although unacquainted with the fact that the plaintiff is in a place where he may be injured as a result of their act. It was not shown that
Although it is not always essential to charge a wrongdoer with willful misconduct to show that he had in mind the particular victim of his wrongful act, the injury cannot be said to have been wantonly inflicted under such circumstances, unless the conduct complained of was with knowledge of circumstances and conditions of such a nature as to charge a wrongdoer with knowledge that his conduct would likely or probably result in injury, and through reckless indifference to consequences he consciously and intentionally does the wrongful act. — M. & C. R. R. Co. v. Martin, 117 Ala. 382, 23 South. 231] So. Ry. Co. v. Bunt, 131 Ala. 595, 32 South. 507; Birmingham Railway, Light & Power Co. v. Brown, 150 Ala. 327, 43 South. 342; Birmingham Railway, Light & Power Co. v. McLeod, 9 Ala. App. 637, 64 South. 193.
It does not seem to us to appear that the wrongful act complained of upon the part of the conductor and engineer, of leaving the cars blocking the crossing for such a length of time, can be said to have been intentionally done with reckless indifference to consequences. The substance of the wrongful conduct of the conductor or engineer in charge of operating the train, complained of as constituting a willful or intentional act, goes to the undue and unreasonable length of time they willfully or intentionally allowed the cars to obstruct the crossing, and yet, for aught appearing, the conductor
The burden was on the plaintiff to make out his case of willful or intentional injury before he was entitled to recover punitive damages. Proof of the failure of the engineer and fireman to return promptly from the mines and remove the cars from the crossing without unnecessary delay, not being attributable to unavoidable accident rather than to willful misconduct on their part, was not an evidential fact accessible alone to the defendant, and, the plaintiff having failed to make out a case of willful injury, it was not incumbent on the defendant to introduce evidence on that point, and its failure to do so cannot be taken as creating an inference in favor of the plaintiff’s case of willful injury after he had failed to make one out for himself. — So. Ry. Co. v. Gullatt, 150 Ala. 318, 43 South. 577.
So far as the allegations of count B of the complaint go, they do not allege circumstances and conditions as known to the persons charged with having been guilty of the wrongful act that are sufficient to show or support a charge of wanton negligence or willful injury. This count, not .directly charging that the injury .was willfully inflicted, but undertaking to state the facts showing this, is lacking in the necessary averments to support such a charge, in that it omits to allege a knowl
It is argued by appellee’s counsel that, even though it should be held that count B does not charge a wanton injury, it was a good count in simple negligence, and that the judgment of the lower court should not be reversed. The answer to that contention is that, even should this count be deemed a good count for simple negligence, the trial court submitted it to the jury as authorizing a recovery of punitive damages, and refused the defendant’s wxfltten charge that punitive damages were not recoverable. With this count considered as a simple negligence count, there was no claim for a recovery of, or basis for awarding, punitive damages.
We are unable to say, as contended, that the submission of the question of the right of the plaintiff tol recover punitive damages, if error, was without injury» The plaintiff is shown not to have suffered any pecuniary loss, and the court charged the jury at considerable length on the plaintiff’s right to recover punitive damages. There is nothing in the amount recovered ($250), considered in connection with the evidence, affording a conclusive presumption that the jury awarded only actual or compensatory damages, and excluding the idea that they added something by way of punishment, as instructed by the court they had the right to do, if they found the injury to have been willfully inflicted.
The rulings on the evidence complained of are without error.
For the errors pointed out, the judgment appealed from must be reversed.
Reversed and remanded.