Alabama Great Southern R. Co. v. Ensley Transfer & Supply Co.

• Decision Date: 15 May 1924
• Docket Number: 6 Div. 987.
• Citation: 211 Ala. 298,100 So. 342
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. ENSLEY TRANSFER & SUPPLY CO.
• Court: Alabama Supreme Court

100 So. 342

211 Ala. 298

ALABAMA GREAT SOUTHERN R. CO. v. ENSLEY TRANSFER & SUPPLY CO.

6 Div. 987.

Supreme Court of Alabama

May 15, 1924

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages by the Ensley Transfer & Supply Company against the Alabama Great Southern Railroad Company.Judgment for plaintiff, and defendant appeals.Affirmed.

The action is for damages for injury to plaintiff's motor truck resulting from a collision with defendant's engine and train at Wood street crossing in the city of Birmingham.The first four counts of the complaint charge simple negligence; but the case went to the jury only on the fifth count, charging wanton or willful injury.

The evidence tended to show that the crossing was in a populous neighborhood, and frequently used by the public.The truck approached the crossing from the south at a speed of four to six miles an hour, the view of the approaching train being cut off by a freighthouse on the left of the street, and also by some freight cars standing on a siding.The train, just before the collision, was running at a speed of 10 to 15 miles an hour, according to the engineer and other witnesses for defendant; the occupants of the car-negro employees of plaintiff-estimated its speed at 55 miles an hour; while other witnesses placed it at 40 or 45 miles.

Plaintiff's witness Robinson testified that he saw the collision from where he was standing at the flag station, about 125 feet away, and that the little freighthouse kept by the Central and the Alabama Great Southern Railroads, was about 50 feet east of Wood street.On redirect examination, the witness testified that he saw the bed of the truck knocked off by the train and turned around.Plaintiff's counsel then asked "That freight station has been moved, hasn't it?"The witness answered, "Yes."Defendant's counsel objected to it as irrelevant incompetent, and immaterial.The objection was sustained, and plaintiff's counsel thereupon said: "We except and offer to show that it has been moved since the accident."Defendant's counsel moved to exclude that statement of counsel, and requested the court to instruct the jury not to consider it.That motion being granted and the jury instructed accordingly, defendant's counsel then moved for a mistrial because of opposing counsel's statement made in the presence of the jury.This motion was overruled.

Defendant's witness Erickson, the engineer in charge of the train, had testified that approaching the crossing next preceding the Wood street crossing-which was Tidewater crossing, with a street car line-"every engineer that has run over this line of road is under control.By that I mean we can stop immediately with the next reduction."On cross-examination he confirmed this statement, and thereupon plaintiff's counsel said: "I will ask you if the Alabama Great Southern train that ran into the Tidewater car and injured all those people shortly after this accident was brought up there under control."The witness replied "Yes, sir; he was."

Thereupon defendant's counsel objected because there was no evidence of such an occurrence, and moved the court for a continuance of the case"on account of the highly prejudicial and improper statement of counsel."The trial judge thereupon said:

"He testified about what other engineers did, of course, but that was just a statement that was allowed to stand.I will sustain the objection and exclude the answer, and, gentlemen of the jury, I will say that any question which Mr. Birch asks in regard to any other accident, whether it happened or not, is improper, and I don't want it interjected into this case, and I exclude it.Of course, you are intelligent gentlemen and know it is just this one case we are trying; we are not trying any other engineer or any other case, or what anybody else did on any other occasion-I know you are intelligent enough to know that, and that you will exclude the statement and the question of counsel from your consideration, and I instruct you not to consider the same in this case."

Defendant's counsel renewed his motion for continuance, which was overruled, with exception reserved.

The following, among other, charges requested, where refused to defendant:

"(34) The law does not presume that any servant, agent, or employee of the defendant was guilty of wantonness or wanton negligence on the occasion complained of, and there is no burden resting on the defendant to show that it was not guilty of wantonness on said occasion.""(26) If, after a fair consideration of all of the evidence in this case, you would not return a verdict against the engineer if he were the partydefendant in this case, instead of the railroad company, then you cannot find a verdict against the railroad company, and your verdict must be for the defendant."

"(29) If you believe the evidence, you cannot find that the defendant's fireman was guilty of any wrongful conduct or omission on the occasion complained of."

"(C) Before you can find that defendant's engineer wantonly damaged the plaintiff's truck, you must be reasonably satisfied from the evidence that said engineer was guilty of such conduct as was equivalent to intentionally damaging said truck."

The jury found for plaintiff and awarded damages in the sum of $2,375.

Defendant duly filed its motion for a new trial, assigning for grounds the various rulings of the court on the trial.From a judgment overruling this motion, the defendant appeals.

Stokely, Scrivner, Dominick & Smith, of Birmingham, for appellant.

Weatherly, Birch & Hickman, of Birmingham, for appellee.

SOMERVILLE J.

American courts are practically unanimous in holding that-

"Evidence of changes or repairs made subsequently to the injury, or as to precautions taken subsequently to prevent recurrence of injury, is not admissible as showing negligence or as amounting to an admission of negligence."29 Cyc. 616;L. & N. R. R. Co. v. Malone,109 Ala. 509, 20 So. 33;Going v. Ala. S. & W. Co.,141 Ala. 537, 551, 37 So. 784;Frierson v. Frazier,142 Ala. 232 (5), 37 So. 825.

The offer by plaintiff's counsel to show that the small freighthouse-referred to by witnesses as standing near the intersection of Wood street and the railroad, and tending to obscure the engineer's view of the truck as it approached the crossing-had been removed since the accident, was, of course, properly rejected.Appellant's complaint is that the mere offer to prove was sufficient to impress the jury with the idea of the existence of the fact, and...