Alabama Consol. Coal & Iron Co. v. Cowden

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Alabama Consol. Coal & Iron Co. v. Cowden, 56 So. 984, 175 Ala. 108 (Ala. 1911)
• Decision Date: 23 November 1911
• Parties: ALABAMA CONSOL. COAL & IRON CO. v. COWDEN.

56 So. 984

175 Ala. 108

ALABAMA CONSOL. COAL & IRON CO. v. COWDEN.

Supreme Court of Alabama

November 23, 1911

Rehearing Denied Dec. 21, 1911.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by William D. Cowden against the Alabama Consolidated Coal &amp Iron Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The pleadings and facts sufficiently appear from the opinion. The following charge was refused to the defendant: (2) "If you believe from the evidence that the mule was frightened by the whistle, and if you also believe from the evidence that the whistle was only blown in a careful and proper manner and that the plaintiff was not willfully, wantonly, or intentionally injured, you must find for the defendant." The fifth assignment of error is as follows: "The court erred in the following part of its oral charge: 'If you are reasonably satisfied from the evidence in this case that this was done with a wanton disregard of the plaintiff's rights, and with a knowledge of the situation, and that to blow the whistle and continue to blow the whistle would result in injury to the plaintiff, if you are reasonably satisfied from the evidence in this case that that state of facts existed, why, as I have already stated, you would have the right to inflict what the law calls punitive damages.' " The fourth assignment of error was to the following part of the oral charge: " 'Now verdicts always are desirable, because trials are expensive. They are expensive, perhaps, to both sides, and the law don't like mistrials.' Relative thereto, the court said, after exception was taken: 'Now, gentlemen, I want to say another word on this subject of a verdict. Of course the court or anybody else don't know what your verdict will be, and what the court had to say with reference to bringing in a verdict or having a mistrial is not intended to intimate one way or the other, because, as I said, the court don't know--it has no way in the world of knowing--what your verdict may be. Now, if, after full, fair, and conscientious consideration of the evidence in this case, you can't reach a unanimous verdict, and that is what the law requires, why, then, after you have--after you have done that, it would have to result in a mistrial, if you are unable to reach a verdict after full, fair, and conscientious consideration of all the evidence in the case.' "

Tillman, Bradley & Morrow and A. G. & E. D. Smith, for appellant.

Harsh, Beddow & Fitts, for appellee.

McCLELLAN J.

The theory of the action, which is instituted by appellee against appellant, is, according to the first count, that plaintiff's mule was negligently frightened and caused to run away by noises made by a locomotive on the railway of the defendant. Omitting the allegations descriptive of the injury and damages ensuing therefrom, this count is as follows:

"The plaintiff claims of the defendant $10,000, as damages, for that, heretofore, to wit, on the 13th day of January, 1909, defendant was operating a train composed of a steam locomotive engine and certain cars upon a railway running near by a public highway, upon which public highway plaintiff was driving a mule attached to a vehicle; that defendant's servants or agents in charge or control of said train caused said locomotive engine to make such great, oft-repeated or long-continued noise as that by reason thereof said mule was caused to get beyond control of plaintiff and run away. * * *

"Plaintiff avers that said mule was caused to get beyond the control of plaintiff, and plaintiff suffered said injuries and damage, as aforesaid, by reason and as a proximate consequence of the negligence of defendant, in this, that defendant negligently caused or allowed the said engine, on the occasion above referred to, to make or continue to make great and unnecessary noise while the same was near said public highway."

A count must be construed as an entirety. 31 Cyc. p. 83; L. & N. R. R. Co. v. Holland, 55 So. 1001. When this count is so considered, it is evident that the pleader characterized as negligent the causing or allowing the mentioned locomotive, on the occasion referred to, "to make or continue to make great and unnecessary noises," wherefrom the animal became frightened. The reference in the fore part of the count to the duration, volume, or repetition of the noise made by the locomotive cannot be dissociated from the later averments wherein the noise is charged to have proceeded from a nonobservance of duty. The latter allegation is referred to the former allegation, in respect of the noise from the engine, by the express averment identifying the noise in each mentioned as made on the same "occasion."

In actions for damages, it is a common practice, in our courts, to form the first count of a number, so as to facilitate its partial adoption, and to avoid repetition, in succeeding counts wherein distinguishable or different allegations of acts or omissions, constituting negligence, or willful or wanton wrong, are charged. Consistent with this practice, which is certainly not to be reprehended, it is usual to set forth a general history of the event along with a statement of the relation of the parties to each other, etc., and then, in a concluding paragraph, to allege the wrongful, proximate, cause of the injury and damage claimed. This practice cannot, of course, require or justify the construction of a count other than as a whole, as an entirety; nor can such a count, when so considered, be exempted from the influence of the rule, if within it, that "the sufficiency of a complaint, in an action for personal injuries, which undertakes to define the particular negligence which caused the injury, must be tested by the special allegation in that respect, although the general allegation of negligence would, in the absence of special allegations, be sufficient to make a prima facie case of negligence." B. O. & M. Co. v. Grover, 159 Ala. 276, 48 So. 682, and earlier decisions therein cited.

But, as we interpret the count under consideration, it is not within the rule quoted. The noise caused or allowed to be made, on the one occasion, is alleged to have been "great and unnecessary," to have been "great, oft-repeated, or long-continued," and that this was "negligently caused or allowed."

The Weathers and Parker Cases, reported in 164 Ala. 23, 51 So. 303, and 156 Ala. 251, 47 So. 138, respectively, turned upon the construction of counts different from the count now under review. A comparison of the counts therein treated and that in hand will discover the differences. It is insisted for appellant that the count is insufficient in the particular that it does not affirm that the noise was recklessly, wantonly, or intentionally made, or that it was made with knowledge, by the operative, that the making thereof would likely frighten plaintiff's mule.

It is also insisted, in brief, that the count is defective in its omission to allege that the animal frightened was of ordinary gentleness. There is no ground of demurrer specifying the last-stated objection to the count. Hence the sufficiency of the count, as respects that criticism, cannot be considered or determined. According to our interpretation of the count, it is, under the authorities, not subject to the demurrer interposed. Leach v. Bush, 57 Ala. 145; B. R. L. & P. Co. v. Jordan, 54 So. 280; Stanton v. L. & N. R. R. Co., 91 Ala. 382, 8 So. 798; B. R. L. & P. Co. v Haggard, 155 Ala. 343, 46 So. 519; Oxford Lake Line Co. v. Stedham, 101 Ala. 376, 13 So. 553--among others.

In actions of this kind, our rule, permitting general allegations of negligence to suffice, unless the other rule, before quoted as from Grover's Case, is applicable, establishes a distinction between the allegation of negligence and the proof of negligence. The former will serve to sufficiently state a cause of action; whereas, the evidence, to sustain, at least prima facie, a justified general averment of negligence, must of course tend to a more particular establishment of definite acts or omissions amounting to negligence for which the defendant is accountable. What amounts to negligence in occasioning the fright of animals by noises from or the operation of locomotives, where injury attends such fright, is a question that must, in a measure, depend upon the circumstances connected with the event.

In Central of Georgia Railway Co. v. Fuller, 164 Ala 196, 200, 51 So. 309, 310, following what we...