Woodward Iron Co. v. Herndon

130 Ala. 364 | Ala. | 1900

McCLELLAN, C. J.

Tbe law applicable to this case, -as now presented, is, in tbe main, sufficiently •stated in the opinion oí this court on tbe former appeal. Woodward Iron Co. v. Herndon, 114 Ala. 191. On that appeal we held that charge f, refused t-o- defendant, should have been given. That charge, as number 21, was requested on tlie last tidal, and again refused. The ebarge is as follows: “If the jury believe from the evidence that, on the day the plaintiff’s intestate received his injuries, the smoke on along' and by the coke ovens was so thick that the track opposite the u pper half of the coke ovens could not be seen by persons on the hand car when it came to the lower end of the coke oven battery; and if they believe that the said Neal knew or was informed that the yard engine, in switching carsi to and from the coke ovens, was liable to be or likely to be passing along through at any time of da}', and the hand car was so far behind the coal train as that the said Neal could not see it and could not tell how 'far ahead of the hand car it was, then the court- charges you that it was negligence in said Neal to ride on said hand car through said smoke under the circumstances, without stopping and sending a flagman ahead to protect the hand car from collision with said yard engine.” Counsel for appellee are mistaken in their insistence that the evidence to which this charge is referable is different on this trial from what is was on the former one, and that the evidence is now undisputed to the effect that when the hand car reached the lower end of the coke ovens Neal could see the coal train, or could tell how far ahead of the hand car it was'. To the contrary, the great weight of the evidence was that he could not then see the coal train nor know how far it was in advance of him. The evidence as to the various distances traveled by and the rates of speed severally of the coal train, the hand car and the switch engine goes circumstantially to this effect, and so does the testimony of Andrews and of Howard. Indeed, there i>s no evidence in the case except that of the witness Stone tending to show that Neal could see the coal train or tell how far it was ahead of him when his ear reached the lower end of the coke ovens. The charge was palpably not abstract, and its refusal was error for which the judgment must be reversed.

It was not essential to recovery, however, that Neal should have seen or been able to see the coal train when he reached the lower end of the line of coke ovens. If from seeing thetraindbefore that as it ran up to the ovens and noting' its speed lie was enabled to tell that be could run bis car through the smoke before the switch engine could secure the right of way and at its usual speed come down into the smoke, the jury might find him justified in proceeding; and it cannot be affirmed as matter of law that he was guilty of negligence because he was any given distance behind the coal train when the latter reached the ovens, unless that distance was so great as that at the rates of speed the hand ear and the coal train were respectively running and at the rate of speed the yard engine should have run and customarily did ¡run to hi® knowledge there was a probability that the switch engine would have time to get on the main line after the coal train passed and get into the -smoke before the hand car cleared it. On the distances and rates of speed hypothesized in charge 7 there was no likelihood that the engine going at two or three miles an hour — ¡and there was testimony tending to show that to be its proper and customary speed— would come down from the office side of the track and meet the hand car in the smoke; and negligence cannot be affirmed as matter of law upon the facts postulated in that charge. These considerations apply also to refused charges 14 and 15, and perhaps others.

It is insisted that the general charge should have been given for the defendant because there was a side track only twenty-three feet from the smoke, on which the switch engine -might have been standing, and from which it might have emerged onto the main track as soon as the coal train passed and gone immediately into the smoke and into collision with the hand car, however closely beyond twenty-three feet- the latter may have been following the train, and that, therefore, it was negligence per sc in Neal to follow the -coal train at all, ¡or at any rate to follow it at the distance of twenty-five yards shown by the evidence most favorable to plaintiff. There is plausibiliy in this view, but we do not think it is sound. As the switch engine was not on that side track, if Neal was guilty of negligence only by relation to that track a likelihood that this engine would be on it, such evidence was not contributory to his death. The several special charges having reference this particular switch and side track were, for the same reason, also properly refused.

Charge 8 is faulty in pretermitting any reference to the unusual speed of the yard engine in coming down to and into the smoke, if not also for other reasons, ('ode, p. 1201, Bule 33.

On the propositions declared on the former appeal, charge. 10 should have been given. It was negligence as matter of law for Neal to run his hand car into and attempt to go through the smoke so far behind the coal train as that that train would clear the main line and allow the switch engine nuvning at its usual rate 'of speed to come down into the smoke before the hand car could get through it; and if the jury found that the engine did not exceed its usual rate of speed, and yet caught the hand car in the smoke, this demonstrates that Neal was negligent in going in under the circumstances : no ordinarily prudent man would have taken this risk.

The other charges refused to defendant are faulty for reasons given here or in the former opinion.

We deem it unnecessary to consider the exceptions reserved to the trial court’s oral charge to the jury.

Exceptions reserved to rulings upon the competency of testimony are not discussed in the brief of appellant, and we do not pass upon them.

The hill of exceptions in this case was prepared in palpable disregard of the rule on that subject. It appears to be a stenographic report of the questionsi to and answers hv the witnesses. Both questions and answers are in a great many instances repeated time again. Not only so, the answers to questions are repeated by counsel in the form of questions. We suppose counsel intended in this way to have the answers confirmed and reiterated hv the witness; but it may be that they had no intention in the premises, but in sheer inadvertence repeated the answers -while they were formulating new questions. It may be said with the utmost safety that of the 4(55 pages in this bill of exceptions, one hundred is taken up by unnecessary repetition. At least another one hundred could have been saved by resorting to a narrative of the evidence and for tlxe most part omitting the questions altogether. There seems to be an impression on the part of the bar that where the propriety of giving the general affirmative charge is involved it is necessary to set out questions and 'answers just as they transpired on the trial. This is a mistaken impression. All the evidence and all its tendencies, may in almost every case and throughout almost any bill of exceptions he fully stated in narrative form. Occasionally it may he necessary in order to convey some shade of meaning which cannot be stated aptly, or where there is doubt as to the meaning, to- set forth the question and the answer; tmt it is not conceived that this necessity can often arise. The provision of the rule to the effect that hills of exceptions should contain a statement of the testimony in extenso when the affirmative charge lms been asked in good faith, by no means contemplates or authorizes the setting forth therein of the questions and answers, but only that the testimony — what the testimony was — shall be stated in full and in narrative form where that can be intelligently and intelligibly done. But for the impression which seems to obtain in the profession above referred to, in connection with the fact that nothing had been said by this court, before the preparation of this bill, to remove it, we should be strongly inclined to disallow the bill of exceptions altogether. As it is we deem it proper to impose upon appellant the whole cost of the bill of exceptions in the court below.

Reversed and remanded. Cost of bill. of exceptions to be adjudged against appellant.