Alabama G.S.R. Co. v. Hall

• Decision Date: 05 February 1895
• Parties: ALABAMA G. S. R. CO. v. HALL.
• Court: Alabama Supreme Court

17 So. 176

105 Ala. 599

ALABAMA G. S. R. CO. v. HALL.

Supreme Court of Alabama

February 5, 1895

Appeal from circuit court, Sumter county; Samuel H. Sprott, Judge.

Action by Beatrice Hall, administratrix of the estate of Marcellus N. Hall, deceased, against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought to recover damages for the alleged negligence of the defendant, which resulted in the death of plaintiff's intestate. The complaint, as originally filed, contained four counts. The second and fourth counts were stricken from the complaint by amendment, and the court gave the general affirmative charge for the appellant as to the third count of the complaint. The allegations of negligence contained in the first count are sufficiently stated in the opinion. The defendant pleaded the general issue, and, by special pleas, contributory negligence. The fourth special plea was in the following language "Further answering each of said counts as amended, the defendant says that for the safety and protection of its employés and for its own safety it promulgated certain rules for the government and guidance of its employés, and among said rules is rule number 246, which had been brought to the attention of the deceased, and which is in words and figures as follows: '246. They must not leave their brakes, while the train is in motion, nor take any other position on the train than that assigned them by the conductor.' And defendant avers that said rule was made and promulgated for the government and guidance of freight brakemen, and that deceased was a freight brakeman when he was killed. Defendant avers that the deceased disregarded and disobeyed said rule in that, while the train was in motion, and without the order of the conductor, he was not at his brake, but was on the engine drawing said train of cars, which act on his part was purely voluntary, and that the disobedience of said rule, and his negligence in respect thereto, contributed proximately to his own injury and death." The plaintiff filed seven replications to the fourth special plea, demurrers to which were sustained by the court. Thereupon the plaintiff filed replication No. 8, which was as follows: "For further replication to defendant's plea No. 4, the plaintiff says that at the time and immediately before the wreck of the locomotive, when her intestate was killed, the engineer, who was then and there in the employment of the defendant, and in charge of and running said locomotive, was guilty of gross negligence in the running of said locomotive, in that he was then and there guilty of wanton and reckless negligence in running said engine at too great a rate of speed, so that, as plaintiff avers, the matter set up in fourth plea is no defense to this action, and plaintiff claims judgment," etc. Issue was joined upon the pleas and upon the eighth replication.

Marcellus Hall, the intestate of the plaintiff, was a brakeman upon a local freight train of the Alabama Great Southern Railroad Company. His proper position on the train was at the front brake. The evidence showed that he was not at this brake, but at the time of the accident which resulted in his death was on the engine, acting as fireman; that he was acting as fireman at the request and for the accommodation of the regular fireman, who was at that time in the caboose of the train. The conductor had not ordered the deceased to act as fireman, nor had he consented to it. The engine upon which the deceased was acting as fireman left the track on a curve about half way between Cuba and York, stations on the defendant's road. When the engine left the track, it turned over, and fell on the deceased, and killed him. The evidence as to the speed of the train varied from 20 to 40 miles an hour. There was evidence for the defendant tending to show that it was dangerous to run trains of this character over 25 miles or 30 miles per hour. The evidence for the defendant tended to show that the cause of the wreck was the breaking of a wheel in the front truck of the engine. Rule 246, referred to in the fourth special plea, was proven, and introduced in evidence; and it was also proven by the defendant that the book containing this rule had been given to the deceased. The expectancy of life of the deceased was at the time of his death, 33.9 years. He was earning $55 per month. The plaintiff, who was his wife, testified that he spent all of his salary in supporting himself and family that he did not have any money, and had no net income; and that his family consisted of his wife and five children. Upon the introduction of one J. L. Clements as a witness for the plaintiff, he testified that he was a traveling salesman, and was upon the train at the time the plaintiff's intestate was killed, and that he had ridden a great deal on freight trains. He was then asked, "Do you know the rate of speed this train was running?" He answered, "Yes sir." The defendant objected to this question, moved the court to exclude the answer thereto, on the ground that the witness had not been shown to be an expert in the matter of judging the speed of trains. The court overruled the defendant's objection, allowed the question to be admitted, and refused to exclude the answer, and to these rulings the defendant duly excepted. The witness was then asked, "State to the jury whether or not it was a dangerous rate of speed for a freight train." The defendant objected to this question upon the same grounds interposed to the preceding question, and duly excepted to the court overruling this objection. Upon the witness answering, "Yes, sir; I think so," the defendant moved to exclude his answer from the jury upon the same grounds, and duly excepted to the court's overruling his motion. Similar rulings were made and exceptions reserved in reference to questions asked the witness Swain. W. H. Mothershed, a witness for the plaintiff, testified that he had been a railroad man for eight or nine years, until recently; that he had served in the capacity of brakeman, conductor, yard foreman, and yard master. This witness testified that the usual rate of speed of freight trains on well-regulated railroads was from 20 to 25 miles an hour, and that a freight train running over 25 miles an hour would be running at a dangerous rate of speed.

Among other things, the court in its oral charge to the jury instructed them as follows: "As a matter of law, I charge you that the deceased was guilty of proximate contributory negligence in leaving his place and going on the engine for the fireman, without orders from his superiors and I withdraw all I said about you deciding whether or not he was guilty of contributory negligence, but I leave it to you to say whether or not the engineer was guilty of gross negligence contributing to his injury, and if you believe from the evidence that the engineer was guilty of gross negligence, and that such gross negligence brought about the death of the deceased, then plaintiff would be entitled to recover, notwithstanding the proximate contributory negligence of the deceased." The defendant duly excepted to this portion of the court's oral charge, and also separately excepted to the court's refusal to give each of the following charges asked by it: (1) "If the jury believe the evidence in this case, they must find a verdict in favor of the defendant." (2) "The court charges the jury that the injury and damage complained of was not the result of such negligence on the part of the defendant as will entitle the plaintiff to recover in this case." (3) "If the jury believe from the evidence that a rule of the company required that deceased, as a brakeman, to ride on the cars, and not on the engine, and that he disobeyed such rule, and rode on the engine, and was killed by the engine as described in the testimony, then plaintiff cannot recover." (4) "If the jury believe from the evidence that the deceased was employed as a brakeman by the defendant, and that he voluntarily left that work, and went on the engine at the request of the fireman, and undertook to do the work of the fireman on the engine, and while so engaged the engine was derailed, and deceased was killed thereby, they must find a verdict...