Alabama Great Southern R. Co. v. Williams

• Decision Date: 07 June 1904
• Citation: 140 Ala. 230,37 So. 255
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. WILLIAMS.
• Court: Alabama Supreme Court

37 So. 255

140 Ala. 230

ALABAMA GREAT SOUTHERN R. CO. v. WILLIAMS.

Supreme Court of Alabama

June 7, 1904

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Jack Williams against the Alabama Great Southern Railroad Company. From a judgment for plaintiff for $1,083.67 defendant appeals. Reversed.

The complaint, as amended, contained five counts. The averments of negligence contained in the first count are sufficiently stated in the opinion. The second count was in words and figures as follows: "(2) Plaintiff claims of the defendant as damages the further sum of fifteen thousand dollars for that whereas the defendant was at the time of the injuries complained of a railroad corporation, and was using and operating a steam engine locomotive on the track of its said road in the state of Alabama. The plaintiff was then and there an employé of the defendant in the discharge of his duties as such employé, and that said duties were that of a brakeman and required him to obey and carry out the instruction of the conductor of said train, and that on to wit, the 16th day of January, 1901, he was on a freight train of which Bill Jones was the engineer, and Walter Hunnicutt was the conductor. That said Hunnicutt instructed him (plaintiff) to get off the caboose and flag the crossing at Woodlawn, and also to notice a hot box. That in obedience to said instructions the said plaintiff got off the train and ran along the side of it, and when he got to the crossing he flagged the crossing. Before leaving, the conductor however also instructed plaintiff that when he went to flag the crossing to look at a certain hot box that was in one of the cars. That after flagging the crossing he gave no signal for the train to move ahead, started across the track to carry out the instructions to see about the hot box, and without the blowing of the whistle or the sounding of the bell, and just as plaintiff was about the center of the track, the engineer willfully or wantonly or intentionally ran his engine upon plaintiff, and when and while the plaintiff was in plain view of him, ran his engine about fifty feet without stopping it. And while plaintiff was scuffling under the engine trying to save his life, and just about the time the train was stopped, the plaintiff's leg was crushed, and had to be amputated. The plaintiff suffered great bodily and mental anguish, was disfigured and permanently disabled for life. The plaintiff avers that his injuries were caused by the willful, wanton, or intentional negligence of said engineer of defendant, who then and there had charge or control of said defendant's engine upon defendant's railroad track; and hence this suit." The averments of negligence of the fifth count are sufficiently shown in the opinion. The defendant demurred to the first count, as amended, upon the following grounds: (1) For that said count is indefinite and uncertain, in that it fails to allege or show wherein the defendant or its servant or servants was guilty of any wanton or willful negligence. (2) For that the negligence in said count is stated merely as the conclusion of the pleader. (3) For that said count joins an action of wanton negligence with an action for simple negligence. (4) For that said count alleges acts on the part of the servants of the defendant which constitute simple negligence and then denominates such acts wanton negligence. (5) For that the allegations of said count show that the servants of the defendant were guilty at most of simple negligence, yet plaintiff, after such allegations, denominates them willful or wanton negligence. (6) For that said count fails to show or allege that the said Bill Jones was in charge or control of the engine which it alleged ran upon or over the plaintiff. (7) For that said count fails to allege or show who it was that was guilty of negligence in failing to warn the plaintiff that said train was about to start. (8) For that said count states no cause of action against this defendant, in that it fails to allege or show that the servants or any servant of the defendant knew of any peril plaintiff was in, or that the acts of such servant or servants were done with the knowledge that such acts would probably result in injury to the plaintiff. (9) For that said count fails to allege or show that the defendant owed plaintiff any duty which defendant failed to observe or violated. (10) That said count does not aver or show that after plaintiff's danger became apparent to the engineer he consciously did anything or failed to do anything with a knowledge that his act would likely or probably result in injury. (11) Said count fails to aver or show that the engineer, after he became aware of plaintiff's peril failed to use all the means at hand known to skillful engineers to prevent the accident. (12) Said count fails to aver or show that the engineer, after he became aware of plaintiff's peril, consciously failed to use all means at hand known to skillful engineers to prevent the accident. To the second count, as amended, the defendant demurred upon the same grounds that they demurred to the first count, and upon the ground that said count joins within itself an action under subdivision 2 with an action under subdivision 5 of section 1749, Code 1896. To the fifth count the defendant demurred upon the same grounds as interposed to the first and second counts. The facts of the case are sufficiently stated in the opinion.

The court, at the request of the plaintiff, gave to the jury the following written charges: "(1) I charge you, gentlemen of the jury, that the actual knowledge on the part of the engineer that Jack Williams was in front of the engine and in danger need not be positively and directly shown, but, like any other fact, may be proved by showing circumstances from which the fact of actual knowledge is a legitimate inference." "(3) If the jury believe that the engineer saw the plaintiff step on the pilot, and should further find that plaintiff was in great danger at that time and the engineer knew he was in great danger, and he failed to use appliances at his hands to stop the train, then they should find in favor of the plaintiff." "(5) I charge you that all that is meant in this case by wanton willful, or intentional negligence is the conscious failure on the part of the engineer to use reasonable care to avoid the injury after discovering the danger of the plaintiff. If the jury find from the evidence there was such a failure, and the injury resulted therefrom, then they should find in favor of the plaintiff. (6) An intent to injure on the part of the defendant's employés is not essential to a liability notwithstanding contributory negligence. It is enough if they exhibit such wantonness and recklessness as to probable consequences as implies a willingness to inflict or an indifference as to whether injury was inflicted therefrom." The defendant separately excepted to the court giving each of said charges, and also separately excepted to the court's refusal to give, among others, the following written charges: "(26) I charge you, gentlemen of the jury, that it was not the duty of the...