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

• Decision Date: 29 October 1898
• Citation: 119 Ala. 555,25 So. 251
• Parties: ALABAMA G. S. R. CO. v. BURGESS. [1]
• Court: Alabama Supreme Court

25 So. 251

119 Ala. 555

ALABAMA G. S. R. CO. v. BURGESS. ^[1]

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Etowah county; John A. Bilbro, Judge.

Action by Telly John Burgess against the Alabama Great Southern Railroad Company for damages for personal injuries. There was a judgment for plaintiff, and defendant appeals. Reversed.

The cause was tried upon the second and seventh counts of the complaint. The second count charges that the defendant "wantonly and intentionally, through its agents or 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." The seventh count was identical with the second, with the exception that it alleged that the defendant "willfully wantonly, and intentionally, through its agents or servants drove," etc. It was shown upon the trial of the cause that the plaintiff was injured by being struck by the engine connected with one of the defendant's trains. Two practicing physicians testified that there was a scalp wound of about three inches on the left side of the plaintiff's head, and that the outer plate of the plaintiff's skull was fractured 2 1/2 inches, and that there was a slight depression in the head, as the result of the injury. These witnesses further testified that plaintiff was rendered unconscious by the blow, and remained so about two days; that there was a temporary loss of speech; that the chances were nine to one that there would be no permanent injury resulting from the wounds. The evidence for the plaintiff tended to show that the accident occurred at 4 o'clock in the afternoon, and that it was a clear, bright afternoon; that the track where the accident occurred was straight for some 2 miles from the place where the injury was inflicted, towards the south, from which direction the train was coming; that for about 400 yards from the south, to the trestle where the plaintiff was injured, the plaintiff could have been seen by the engineer, and was seen by the engineer. The evidence for the defendant tended to show that when about 400 yards from the trestle, where the plaintiff was injured, the engineer saw an object on the track, but could not distinguish what it was; that he did not discover that it was a child on the track until he was within 50 yards of the plaintiff; that immediately upon discovering that the object on the track was a child, he gave the signal alarm, reversed his engine, put on the brakes, and did everything in his power to avert the accident, but that it was impossible to stop the train until after the plaintiff had been struck. The defendant's testimony further tended to show that when a train is going at the rate of 35 miles or 40 miles an hour, as the defendant's train was at the time in question, such train could not stop within about 200 yards. During the examination of L. F. Burgess, the father of the child, and after he had testified to his having lived within a short distance from and in full view of, the track where the accident occurred and that he had seen passenger trains running on that railroad frequently at the rate of 35 or 40 miles an hour, plaintiff asked the witness the following question: "Have you ever seen that train, running on schedule time, stop there on that grade?" The defendant objected to this question on the ground that it called for immaterial, irrelevant, and incompetent testimony. The court overruled the defendant's objection, and the defendant duly excepted. The witness answered that he had seen the train that goes along the road at the same time of the afternoon as the one which injured the plaintiff stop on that grade when the road was in the same condition as at the time of the injury. The defendant objected to this answer on the ground that it was immaterial, irrelevant, and incompetent evidence, and upon the ground that the conditions were not shown to have been the same, that the engine was not shown to have been in the same condition as at the time of the accident, and that the speed of the train was not shown to have been the same as at the time of the accident. The court overruled the objection, and the defendant duly excepted. The witness then testified that he was a farmer, had never ridden on the train but a few times in his life, had never ridden on an engine, and had no experience as an engineer. The witness was then asked the following question: "Within what distance can a passenger train, running on regular schedule, going north, be stopped at that place, as the road was at that time?" The defendant objected to this question on the grounds that it called for the conclusion of the witness, and the witness was not shown to have been an expert, and that it called for irrelevant, immaterial, and incompetent testimony; that it was not shown that the conditions were the same, or that the rate of speed at which the train was running was the same, as at the time of the accident. The court overruled the objection, and the defendant duly excepted. The witness answered that a train could be stopped in about 200 yards. The defendant moved to exclude this answer of the witness upon the same grounds as the objection to the question was based. The court overruled this objection, and the defendant duly excepted. The bill of exceptions recites that the plaintiff "asked the court to be allowed to withdraw questions 1 and 2 propounded to L. F. Burgess by plaintiff on direct examination, and the answers to said questions. (Said questions and answers were in reference to witness having seen train stopped on that grade, and as to distance within which train could be stopped.) The court allowed the plaintiff to withdraw the testimony, and stated to the jury that there was no evidence before them on the subject of distance within which train could be stopped, except the evidence of defendant; and to this statement of the court to the jury defendant objected and excepted. Counsel for the defendant stated in open court that he did not consent to the course taken by counsel for the plaintiff, and protested that the introduction of the testimony had worked injury to the defendant, which could not be healed by withdrawing it; and counsel for the defendant stated to the court that he still insisted upon an exception to the action of the court in admitting the testimony."

The defendant separately excepted to the following portions of the court's general charge to the jury: "To both these counts (2 and 7) the defendant pleads that it is not guilty of the wrongs complained of. So, therefore, gentlemen, I charge you, if you believe from the evidence that the defendant was propelling an engine, with cars, along its track, and that the defendant saw that the plaintiff was in danger of injury by said engine, and that defendant, after discovering plaintiff's peril, consciously failed at the time to use the means at hand, which the circumstances reasonably required, to avert the injury, and that in consequence of such failure the engine was driven against the plaintiff, and injured him, then the plaintiff is entitled to recover, under the second or seventh counts of his complaint, such damages as you see proper to assess, not exceeding the amount claimed in either count."

At the request of the plaintiff the court gave to the jury the following written charges: "(1) The court charges the jury that the impossibility of definitely measuring the damages, by a money standard, where pain is claimed as an element of damages, is no ground for denying pecuniary relief, if the jury believe plaintiff is entitled to recover in this case. (2) In order for the plaintiff to recover in this case, it is not necessary that the jury should find that the engineer intended to injure plain...