Alabama G.S.R. Co. v. Linn

• Citation: 103 Ala. 134,15 So. 508
• Parties: ALABAMA G. S. R. CO. v. LINN ET AL.
• Decision Date: 02 May 1894
• Court: Supreme Court of Alabama

15 So. 508

103 Ala. 134

ALABAMA G. S. R. CO. v. LINN ET AL.

Supreme Court of Alabama

May 2, 1894

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

Action by George W. Linn & Son against the Alabama Great Southern Railroad Company to recover damages for injuries to a team of mules, wagon, and harness, caused by defendant's negligence. There was a judgment for plaintiffs, and defendant appeals. Reversed and remanded.

The negligence complained of was in the failure of defendant's employes to give the proper signals while passing a crossing at which the accident occurred; their failure to stop the train after discovering the peril of plaintiffs' team, and the running of said train at a high rate of speed where the accident happened. Defendant pleaded the general issue, and in several different forms the contributory negligence of plaintiffs; and upon these pleas issue was joined. One B. Mason testified that he was on the engine at the time of the accident; that the whistle had been blown for the crossing, and that he himself was ringing the bell as they approached the crossing; that, when the signal to stop was given by one of the brakemen on the train (which signal the brakeman testified he gave immediately upon discovering the peril of plaintiffs' team), the engineer blew for brakes, put on the brakes of his engine, reversed the engine, and sanded the track; that he himself had been working on an engine as engineer and fireman for about 11 years, and knew all about the management of locomotive engines. Defendant then asked him "whether or not the train of cars was stopped as soon as it could be done after the signal was given." Plaintiffs objected to this question. The court sustained the objection, and defendant excepted. One T. H. Wright, a witness for the defendant testified that he was standing behind the wagon just before it started across the track; that the Alice furnace was making a good deal of fuss, but he heard the train coming and looked up and saw it; that, as the driver of plaintiffs' wagon started across the track, the witness hallooed to him not to attempt to go across the track, but that the driver seemed excited, and not to apprehend the danger he was in, and whipped up his mules, and started across the track; that the driver did not stop before he started across the track, nor did he appear to look or listen for the train. The defendant then asked this witness the following question: "Could the driver of this wagon have seen the cars in time to have prevented the accident if he had looked up and down the track before attempting to cross?" The court sustained an objection by plaintiffs to the question, and defendant excepted. The court, in its oral charge to the jury, among other things, instructed them as follows: "You must decide under this evidence whether or not the defendant was guilty of wanton, reckless, or intentional negligence." The defendant objected to the giving of this portion of the court's general charge, and also separately excepted to each of the following portions of the court's general oral charge: (1) "It is a question for you to decide whether or not it was negligence for the railroad to run its train at the rate of speed which is complained of." (2) "If you should decide that the speed of the train was dangerous, and that they failed to ring the bell or blow the whistle, then it is left for you to say what was the degree of negligence; and, if you decide that this negligence amounted to willful or wanton or reckless negligence, then the plaintiffs will be entitled to recover, notwithstanding the servant of plaintiffs may have been guilty of contributory negligence which contributed proximately to his injury." (3) "If you should find from the evidence that the defendant's action amounted to wanton, reckless, or intentional negligence, then you can assess as damages, not only the value of the property, but also can give punitive damages by your verdict." Among the written charges which were asked by the defendant, and to the refusal to give each of which the defendant separately excepted, were the following: (2) "Neither the running at a high rate of speed at this crossing, nor the failure to give the statutory signals on approaching it, nor the failure to keep a proper lookout, nor any other mere omission of duty on the part of the defendant, amounts to such gross negligence, recklessness or wantonness as will overcome contributory negligence." (3) "If the jury believe from the evidence that the servant of the plaintiffs was guilty of such negligence in this case as contributed proximately to the injury complained of, then they must find a verdict for the defendant." (4) "The court charges the jury that in this case the defendant is not shown to have been guilty of such gross negligence, recklessness or wantonness as will overcome contributory negligence on the part of the plaintiffs, if they believe from the evidence that the plaintiffs' servant was guilty of such contributory negligence as contributed proximately to the injury." (6) "If the jury believe from the evidence that the manifestations of the peril of the wagon and team and driver of the wagon, and the collision between them and the train, were so close in point of time that the train could not have been stopped in time to avoid the collision then the defendant's agents in charge of said train cannot be deemed guilty of wanton, reckless, or intentional misconduct." (7) "Neither the failure to ring the bell of the engine or blow the whistle, nor the speed of the train before the peril of the team and wagon and driver became manifest, or ought to have been manifest, under the evidence, is evidence of wanton, reckless, or intentional misconduct on the part of the defendant's servants." (8) "Wanton, reckless, or intentional wrong cannot be inferred, unless the employes actually knew of the peril of the...