Western Railway v. Sistrunk

85 Ala. 352 | Ala. | 1888

SOMERVILLE, J.

1. Tbe Circuit Court properly allowed tbe complaint and summons to be amended, so as to show that Tbe Alabama Railway Company was a body corporate, and was sued in its corporate capacity. Tbe amendment did not operate to substitute a new party defendant to tbe suit. It only added words of more accurate description. Southern Life Ins. Co. v. Roberts, 60 Ala. 431; Ga. Pacific Railway Co. v. Propst, 83 Ala. 518. Tbe demurrer to tbe complaint, and the motion to strike tbe cause from tbe docket, based on this supposed departure or variance in tbe pleadings, was properly overruled.' Tbe objections raised were fully obviated by tbe amendment.

2. Tbe complaint, in our opinion, complied with tbe statute, and was sufficiently certain in averring the time and place of tbe alleged injury, as “on or about the 2Üth of September, 1887,” and as “at a place on said railroad about seventy-five or one hundred yards distant from Cowles station in Macon county.” Tbe purpose of this statutory requirement, in existence at tbe time of tbe alleged injury (Code, 1876, 1711), but now repealed, it seems, by omission from tbe new Code of 1886 (§1150), was “to inform tbe railroad officials, with reasonable certainty, as to tbe circumstances attending tbe alleged injury, so that they may act advisedly in tbe investigation of the case, either with the view of, voluntary adjustment, or of defense at law.” — E. Tenn., Va. & Ga. R. R. Co. v. Carloss, 77 Ala. 443. The averments practically accomplished this purpose, and tbe ground of demurrer raising the objection of uncertainty was properly overruled.

3. In this view of tbe law, tbe action of tbe court was free from error, in admitting evidence showing an injury to plaintiff’s mules “on or about tbe 18th September,” or “between tbe 16th and 20th of September,” in tbe year 1887, and within a hundred and fifty yards of Cowles station, situated on tbe line of defendant’s railway. The evidence in question tended substantially to prove tbe allegations of the complaint as to tbe injury complained of in tbe action.

4. It is not clear from tbe record that tbe court committed error in excluding tbe statement of tbe witness McWaters, who was engineer in charge of tbe locomotive at the time of tbe accident, as to what tbe fireman said “immediately after” running into tbe second mule, and while it was lying upon tbe bumper of tbe engine. Tbe facts in evidence do not show with sufficient certainty whether tbis exclamation, which seems to have bad reference to an injury to a third mule, was so intimately connected with tbe act of injury to which it referred, as to constitute it a part of tbe res gestee, or whether it was merely narrative of a transaction already past. — Dismukes v. State, 83 Ala. 287; Ala. Gr. So. R. R. Co. v. Hawk, 72 Ala. 182. Tbe onus is. on tbe appellant, who challenges tbe correctness of tbe ruling, to satisfactorily show tbe error of which be complains.

5. If tbe failure of tbe engineer to keep a diligent lookout for obstructions on tbe track materially contributed to tbe alleged injury to tbe plaintiff’s stock, tbis would be sufficient to impose a liability on defendant for tbe resulting damage, tbe plaintiff himself being free from fault. Tbe requirement of tbe statute' — that tbe damage to personal property, for which a railroad is liable, should result from its failure to comply with statutory requirements, or other negligence of tbe company — does not mean that tbis negligence should necessarily be tbe sole or immediate cause of tbe injury. It means nothing more than that tbe injury must be the natural and proximate consequence ®f tbe negligence. If tbe defendant’s wrongful act is one of two or more concurring efficient causes, other than tbe plaintiff’s fault, which co-operate directly to produce tbe injury, tbis, under tbe authorities, is all that is requisite to fasten a liability on him. — New Philadelphia, 1 Black (U. S.), 62; Shearman & Redfield on Negl. § 10, note 2, and cases cited. Tbis is all in substance asserted by tbe first bharge given at tbe request of tbe plaintiff.

6. It is clearly the theory of these statutory requirements, imposing on engineers of railroad companies the duty to ring the bell, or blow the whistle, under certain circumstances (Code, 1876, §§ 1699-1702), that the proper and timely discharge of these duties will probably exert some influence in preventing injuries to persons, and to live-stock. It may furnish warning to persons, and tend to frighten animals away from the track. — Tonawanda R. R. Co. v. Munger, 49 Amer. Dec. 266, Note, and cases cited; S. & N. Ala. R. Co. v. Jones, 56 Ala. 507; Aycock v. Wilmington R. R. Co., 6 Jones’ L. (N C.) 231; E. T., Va. & Ga. R. R. Co. v. Bayliss, 77 Ala. 429. If a failure of the engineer to comply with these statutory requirements reasonably contributed to the injury done plaintiff’s stock, the defendant would be liable, there being no question of plaintiff’s contributory negligence in the case. The third charge given at plaintiff’s request, bearing on this point, was substantially correct.

7. The court erred, however, in giving the second charge requested by the plaintiff, which asserted that, if the railroad locomotive was running at a very rapid rate of speed at the time the mules were struck, and the injury occurred because of this fact, the defendant would be liable. The statute does not regulate the speed of railroad trains in passing stations, nor require them to check their speed, except when entering “a curve crossed by a public road,” where the engineer can not see at least one-fourth of a mile ahead. Here they “must approach and pass such crossing at such speed as to prevent accident, in the event of an obstruction at the crossing.” — Code, 1886, § 1144; Code, 1876, § 1699. The movements of trains in towns and cities are authorized to be regulated by the municipal authorities. — Code, 1886, §1519. Except so far as changed by statute, no particular rate of speed, however rapid, can, per se, or as matter of law, be evidence of negligence. And it is quite proper in this progressive age of inventions in science and art, when the necessities of commerce are every day demanding more rapid transit, that no such unprogressive rule of law should be promulgated by our courts. The authorities are uniform in support of this view, and I trust always will be.-— E. T., Va. & Ga. R. R. Co. v. Deaver, 79, Ala. 216; Tonawanda R. R. Co. v. Munger, 49 Amer. Dec. 267, Note, and cases cited; Shearman & Redfield on Negl. § 478. It has often been held, under statutes similar to our own, that the mere fact that a train was running at a very rapid speed, even at a crossing, is not sufficient evidence of negligence to render the company liable for injury to cattle. — Toledo R. R. Co. v. Barlow, 71 Ill. 640; Plaster v. Illinois R. R. Co., 35 Iowa, 449; Lafayette R. R. Co. v. Shriner, 6 Ind. 141. Where the statute is inapplicable, the question of negligence vel non must be governed by the rules of the common law. — Louisville R. R. Co. v. Commonwealth, 26 Amer. Rep. 205, and Note, pp. 207-211; Deaver's case, 79 Ala. 216, supra. The charge under consideration was a clear violation of these principles.

8. The first charge, marked “A,” requested by the defendant, was misleading, and on this account was properly refused. It assumes, that no duty devolved on the engineer to use any precaution to frighten the mules away from the track, by the use of the whistle or bell, until he discovered them actually on the track, or else approaching it. This duty might exist, if he saw, or by the use of due diligence ought to have seen, the animals in dangerous proximity to the track, and under circumstances indicating danger of their getting on the track — a feature of the case which the charge improperly withdrew from the jury. — S. & N. R. R. Co. v. Jones, 56 Ala. 507.

The court committed no error in refusing the general affirmative charge requested by defendant.

Reversed and remanded.