Alabama G.S.R. Co. v. Burgess

• Decision Date: 20 May 1897
• Citation: 114 Ala. 587,22 So. 169
• Parties: ALABAMA G. S. R. CO. v. BURGESS.
• Court: Alabama Supreme Court

22 So. 169

114 Ala. 587

ALABAMA G. S. R. CO. v. BURGESS.

Supreme Court of Alabama

May 20, 1897

Appeal from circuit court, Etowah county; James J. Banks, Judge.

Action by Telly John Burgess against the Alabama Great Southern Railroad Company. From a judgment in favor of plaintiff defendant appeals. Reversed.

On October 12, 1894, the appellee, Telly John BUrgess, who sues by his next friend, L. F. Burgess, brought the present action against the appellant, the Alabama Great Southern Railroad Company, to recover damages for personal injuries. The complaint as filed contained six counts; but, as is stated in the opinion, the cause was tried upon the second and fifth counts of the complaint, which were as follows: "(2) Plaintiff claims of the defendant twenty-five thousand dollars as damages, for that defendant on or about the _____ day of August, 1894, was engaged in the business of a common carrier of passengers, propelling cars by steam in Etowah county, Alabama, and then and there wantonly or intentionally, through its agents and servants, drove and propelled its engine and train upon and against plaintiff, in said county, who was then and there a minor between seven and eight years of age, knocking him down, and fracturing his skull, and otherwise wounding and injuring him, to his great damage as aforesaid; hence this suit." "(5) Plaintiff claims of defendant twenty-five thousand dollars as damages, for that whereas, on or about the _____ day of August, 1894, defendant was engaged in the business of a common carrier of passengers in Etowah county, Alabama propelling cars by steam, and while so engaged as such common carrier the servants and agents of defendant in charge of the train of defendant, after discovering that plaintiff was in danger of injury, failed to exercise due care and diligence to avoid his injury, when the exercise of such care and diligence might have avoided his injury, whereby plaintiff became and was injured by the train of defendant knocking him down and fracturing his skull, and otherwise injuring and wounding him, and such injuries resulted from defendant's failure to use due care and diligence to avoid injuring him after defendant's agents and servants knew plaintiff's peril as aforesaid, when such care and diligence might have avoided plaintiff's injuries, and such injuries occurred in Etowah county, Alabama." To the second count the defendant demurred upon the following grounds: "(1) Said count shows on its face that plaintiff was a trespasser on defendant's track, and fails to aver that the injury was wantonly, willfully, or intentionally inflicted. (2) Said count fails to account for the presence of plaintiff on the track, and fails to show that the injury was wantonly, willfully, or intentionally inflicted. (3) Said count fails to show that plaintiff was a passenger, an employé, or sustained any relation to defendant other than a trespasser on its track, and also fails to show that the injury was wantonly, willfully, or intentionally inflicted." To the fifth count the defendant demurred upon the following grounds: "(1) Said count shows on its face that plaintiff was a trespasser, and fails to show that the injuries were wantonly, intentionally, or willfully inflicted. (2) The averments in the fifth count-that the servants and agents of defendant, after discovering that plaintiff was in danger of injury, failed to exercise due care and diligence to avoid his injury, when the exercise of such care and diligence might have avoided his injury, and that plaintiff's injuries resulted from defendant's failure to use due care and diligence to avoid injuring him after defendant's agents and servants knew plaintiff's peril as aforesaid-are not the equivalent of an averment that the injuries were wantonly, willfully, or intentionally inflicted. (3) Said count makes out only a case of simple negligence, and does not amount to a charge of wanton, willful, or intentional negligence. (4) Said count fails to contain any statement of facts from which any duty to plaintiff originated. (5) Said count fails to show in what respect defendant failed to exercise due care and diligence to avoid the injury. (6) Said count is too uncertain, vague and indefinite in its allegations of negligence. (7) Said count fails to state sufficient facts in regard to the happening of the alleged injury. (8) Said count fails to show what agents or servants of defendant failed to use due care and diligence. (9) Said count fails to aver that the agents and servants who are alleged to have failed to use due care and diligence were the agents and servants in charge of the engine and train." The demurrers to each of these counts, respectively, were overruled, to which ruling the defendant separately excepted. The cause was tried upon the plea of the general issue interposed to these two counts. The facts of the case as pertaining to the rulings of the court upon the evidence, and the other material facts of the case, are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges, to the giving of each of which the defendant separately excepted: (1) "The court charges the jury that the impossibility of definitely measuring the damages by a money standard, when pain is claimed as an element of damages, is no ground for denying pecuniary relief, if the jury believe plaintiff is entitled to recovery in this case." (2) "The court charges the jury that in this case all that is meant by 'wanton, intentional, or willful negligence' is the failure on the part of the defendant to use due care under the circumstances to avoid the injury after discovering plaintiff's peril." (3) "The court charges the jury that, although plaintiff was himself negligent or at an improper place where he was struck by the train, yet, if the engineer saw the plaintiff's peril in time to stop the train, and could have stopped it by the use of due care before plaintiff was struck, and failed to do so, and plaintiff was struck by the train and injured, defendant would be liable, and the jury should find for the plaintiff such damages as they think he is entitled to recover, not exceeding $25,000." (4) "The court charges the jury that, if they are reasonably satisfied, from the evidence, that the engineer saw the child on the track and saw that he was in peril, in time to avoid injuring him by the exercise of reasonable diligence, and they further believe that the engineer failed to exercise such reasonable diligence to avoid injury to the plaintiff, such failure would be wanton negligence, and the plaintiff would be entitled to recover such damages as the jury think he is entitled to recover in this case, not exceeding $25,000, if the jury believe plaintiff was injured by the failure to use reasonable diligence to avoid plaintiff's injury." (5) "The court charges the jury that, although the plaintiff was himself negligent or at an improper place when he was struck by the train, yet if the engineer saw the plaintiff's peril in time to stop the train, and could have stopped it by the use of reasonable care before plaintiff was struck, and failed to do so, and plaintiff was struck by the train and injured, defendant would be liable, and the jury should find for the plaintiff such damages as they think he is entitled to recover, not exceeding $25,000." The defendant requested the court to give to the jury the general affirmative charge in its behalf, and duly excepted to the court's refusal to give said charge as asked. There were verdict and judgment for the plaintiff, assessing his damages at $3,000. There was a motion made by the defendant for a new trial, assigning as grounds thereof the several rulings of the trial court to which exceptions had been reserved, and upon further grounds that the verdict was contrary to the evidence, and that the damages awarded were excessive. This motion was overruled, and the defendant duly excepted. Defendant assigns as error the several rulings of the trial court to which exceptions were reserved.

Goodhue & Sibert, for appellant.

Dortch & Martin, for appellee.

HEAD J.

Action against the railroad company for personal injuries. The case was tried upon the general issue to the second and fifth counts of the complaint; the other counts having been withdrawn, which carried with them, of course, the special pleas which were directed to those counts only. No special pleas were filed to the second and fifth counts. There was no merit in the demurrers to these two counts. The second shows sufficiently that the defendant's servants or agents committed the injury wantonly, willfully, or intentionally hence it is not material that it also shows that plaintiff was wrongfully on the track. The fifth was apparently treated, on the trial below, as being of the same character, and there are expressions in many of our decisions importing that such wrongdoing as is charged in this count against the servants of the defendant company in operating the train is the equivalent of wanton or willful misconduct, and the rulings of the court below were no doubt influenced by these expressions. But, upon examination of several of our recent rulings, the principle will be found to have been declared that, to constitute wantonness or willfulness on the part of the servants, in their omissions to use proper preventive effort after discovery of the peril, they must have been conscious, at the time, that they were omitting to use the means at hand which the circumstances reasonably required to...