62 So. 180 | Ala. | 1913
The distinction between the mental attitudes which respectively characterize wanton negligence and willful injury has been often discussed and clearly stated in the reported decisions of this court, and repetition is unnecessary. — L. & N. R. R. Co. v. Calvert, 170 Ala. 565, 54 South. 184; Adler v. Martin, 179 Ala. 97, 59 South. 597; Southern Ry. Co. v. Benefield, 172 Ala. 588, 55 South. 252, 35 L. R. A. (N. S.) 420, wherein the cases are collected.
It is to be noted, however, that the terms “wanton” and “willful” relate primarily to the resulting injury, rather than to the mere act or omission which proximately produces that injury, for, considered without reference to known, probable or inevitable injury resulting, even the conscious or intentional omission of any precautionary duty is no more than simple negligence. L. & N. R. R. Co. v. Anchors, 114 Ala. 492, 500, 22 South. 279, 62 Am. St. Rep. 116; M. & C. R. R. Co. v. Martin, 117 Ala. 367, 382, 23 South. 237; B. R. L. & P. Co. v.
The first and second charges complained of merely assert that a wanton wrong is the moral, or the moral and legal, equivalent of an intentional wrong. They do not assert that the essential ingredients of the two acts are the same, nor do they attempt to define them, and they fall very far short of declaring that in order to find defendants guilty of wanton wrong they must have intended to inflict the injury charged. They assert propositions of law so often repeated in the decisions of this court that they may he said to be mere truisms.—B. R. & E. Co. v. Bowers, 110 Ala. 328, 20 South. 345; B. R. & E. Co. v. Franscomb, 124 Ala. 621, 624, 27 South. 508; H. A. & B. R. Co. v. Robinson, 125 Ala. 483, 489, 490, 28 South. 28; Mobile, etc., R. R. Co. v. Smith, 146 Ala. 312, 40 South. 763.
In L. & R. R. R. Co. v. Orr, 121 Ala. 489, 498, 26 South. 35, 41, it was said that wantonness implies “a willingness to inflect injury,” and here the only difference, so far as civil liability is concerned, is in the elements of proof. In the Orr Gase it was properly held error to charge the jury that Avantonness and willfulness were the same in meaning, but that is a different proposition from the one noAV presented, and, moreover, it is noteAvorthy that the charge was there held to be injurious to the defendant and not to the plaintiff.
Certainly, the most that can be fairly claimed by appellants is that the charges might have been misleading. But that is not a ground for reversal, nor could they have here misled the jury in view of the several charges given at plaintiffs’ request, plainly instructing the jury that neither a will nor an intent to injure is necessary to constitute wantonness.
The fourth charge merely requires proof by plaintiffs of the allegations of their complaint, and was properly given. It may be conceded that, so far as the alternative of intentional or Avillful injury is concerned, the charge was abstract;-but this was favorable to plaintiffs, and of it they cannot complain.
When a train approaches a crossing where its line intersects with the line of another railroad, and no train on that other line is approaching the crossing in dangerous proximity thereto — that is, so near and at such a rate of speed as to indicate either a purpose to cross without stopping or an inability to stop before reaching it — its engineer and conductor may presume that other trains approaching the crossing will comply with the law and stop before reaching the crossing, and may rely upon their doing so. This is a well-settled principle of law. — B. M. R. R. Co. v. Jacobs, 101 Ala. 149, 158, 18 South. 408; So. Ry. Co. v. Bryan, 125 Ala. 297, 306, 28 South. 445; A. G. S. R. R. Co. v. Hanbury, 161 Ala. 358, 376, 49 South. 467. This, of course, does not excuse those in charge of a train from the duty of themselves complying with the laAV and exercising all due
Tested by these principles, the fifth charge was free from error. It does not predicate defendant’s nonliability by reason of the stated presumption, but merely justifies that presumption by the engineer Hankins if he found the crossing clear just immediately before he reached it, and if he was otherwise*free from negligence. It is too patent for serious denial that the condition last quoted leaves to the jury the whole question of Han-kins’ negligence vel non in the matter of stopping his train within 100 feet of the crossing; in discovering the approach of the other train; in perceiving that it could not or would not stop before reaching the crossing; and, in short, in doing or omitting anything in violation of his duty under the statutes or under the rule of due care and diligence under the circumstances. Whether or not Hankins was negligent in any of these particulars was a disputed question of fact, and was properly submitted to the jury. And, if it were not disputed, this would merely render the charge abstract, and not erroneous.
The fact that another suit to recover damages for intestate’s death, as the result of this collision, was presently pending between these plaintiffs and the Southern Railway Company, was before the jury. We see no impropriety in the instruction given to the jury at defendant’s instance that, whatever their verdict might be in this case, plaintiffs would not be precluded from prosecuting suit against the other company. The charge stated a correct proposition of law, and was in no sense an invitation to the jury to render a false and prejudicial verdict. It merely informed them that the two cases were not dependent upon each other, and that in deter
We do not affirm that the trial court was bound to give such a charge, but we are satisfied that giving it was not prejudicial.
Finding no error in the record, the judgment will he affirmed.
Affirmed.