Hunter v. Louisville & N.R. Co.

• Citation: 43 So. 802,150 Ala. 594
• Parties: HUNTER v. LOUISVILLE & N. R. CO.
• Decision Date: 17 January 1907
• Court: Supreme Court of Alabama

43 So. 802

150 Ala. 594

HUNTER v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

January 17, 1907

Rehearing Denied May 6, 1907.

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action for personal injuries by F. B. Hunter against the Louisville & Nashville Railroad Company. From a judgment for defendant plaintiff appeals. Affirmed.

Tyson C.J., and Denson, J., dissenting in part.

James T. Kirk and W. W. Callahan, for appellant.

J. M Falkner, Geo. W. Jones, Harris & Eyster, and A. J. Harris for appellee.

DOWDELL, J.

We have on several occasions recently called attention of attorneys to the fact that the assigning of errors on separate sheets of paper and pasting the same on the page or pages of the transcript is not a compliance with the rule of practice as to the assignment of errors that has always obtained in this court. The transcript is intended to be a permanent record, and is required by law to be bound for permanent preservation as a record of this court, and the assignment of errors, when made on its pages, becomes a part of the record. In the present case the assignment of errors is made on separate sheets of paper, which are attached to a page of the transcript with ordinary paper fasteners, subject to easy detachment and removal. This is not a compliance with the rule, and cannot, therefore, be regarded or considered as an assignment of errors on the transcript; and the judgment appealed from will be affirmed for want of assignment of errors in the transcript.

Affirmed.

McCLELLAN, C.J., and TYSON and DENSON, JJ., concur.

On Application for Rehearing and on Application to Set Aside Judgment and Order of Submission.

PER CURIAM.

The court adheres to all that was said in respect to the rule as to the proper mode and practice of assigning errors on the record, and the application for rehearing must therefore be denied. But since the cause was submitted on the merits, no motion having been made for the affirmance of the judgment appealed from for want of assignment of errors on the record, and in further consideration of the fact that there was an attempt to assign errors, though such an attempt was under a misconception of the rule, the court is inclined to allow the appellant to now assign errors, and the application for that purpose will be granted.

To that end it is ordered that the judgment of affirmance and the order of submission be set aside and the cause restored to the docket. All the Justices concur.

On the Merits.

DOWDELL J.

The plaintiff sued to recover damages for personal injury sustained by him in alighting from a moving train of the defendant. The complaint, as amended, contained four counts, to each and all of which the plea of the general issue was interposed, and to the first, third, and fourth counts special pleas of contributory negligence. The judgment entry recites that issue was joined on plea of not guilty, and on special pleas 7 and 9, and on special replication No. 2. Upon the conclusion of the whole evidence, the court, at the request of the defendant in writing, gave the general affirmative charge with hypothesis to find for the defendant.

The second count of the complaint was intended, and so treated by both the plaintiff and defendant, as one for willful and intentional wrong and injury. There was a total absence of evidence showing or tending to show willful or intentional wrong on the part of the defendant's servants, or such gross negligence as would be tantamount to wantonness; and hence no error was committed in the giving of the general charge to find for the defendant as to the second count.

The third count of the complaint bases the plaintiff's right of recovery for the injury sustained for alleged negligence in the management and operation of the train while the defendant's conductor was assisting plaintiff in alighting from the train on which the plaintiff was a passenger. This count does not aver that the train was at the time in motion, and for aught that appears in the averments of the complaint the train had stopped at the station of the plaintiff's destination. There is a total absence of any evidence showing or tending to show that the plaintiff, at the time of alighting from the train and receiving his injury, was assisted or being assisted by the conductor or any other servant of the defendant to alight from the train, or that at the time the train was negligently managed or operated. The undisputed evidence shows that the train was slackening its speed and gradually slowing down for Falkville, the place of plaintiff's destination, when plaintiff debarked while the train was yet moving and without assistance from any one. There was clearly no error in the giving of the general affirmative charge in favor of the defendant as to the third count of the complaint.

The first and fourth counts of the complaint proceed upon the theory that the train on which the plaintiff was a passenger was not scheduled to stop at Falkville, plainti...