Alabama Great Southern R. Co. v. Morrison

• Decision Date: 29 June 1967
• Docket Number: 6 Div. 49
• Citation: 202 So.2d 155,281 Ala. 310
• Parties: ALABAMA GREAT SOUTHERN RAILROAD CO. et al. v. Annie Pearl MORRISON, as Adm'x.
• Court: Alabama Supreme Court

Page 155

202 So.2d 155

281 Ala. 310

ALABAMA GREAT SOUTHERN RAILROAD CO. et al. v. Annie Pearl MORRISON, as Adm'x.

6 Div. 49.

Supreme Court of Alabama.

June 29, 1967.

Rehearing Denied Sept. 7, 1967.

Cabaniss, Johnston, Gardner & Clark, Leigh M. Clark and L. Murray Alley, Birmingham, for appellants

Hare, Wynn, Newell & Newton, Birmingham, for appellee.

COLEMAN, Justice.

Defendants, The Alabama Great Southern Railroad Company, (AGS), and its engineer, Fox, appeal from a judgment for $60,000.00 rendered on a verdict for the plaintiff in action for wrongful death of plaintiff's intestate who was killed when an automobile, in which intestate was riding as a passenger, collided with a train of AGS at a grade crossing within but near the corporate limits of the City of Birmingham at approximately 6:50 a.m. on January 20, 1961. The driver of the automobile was also killed.

The railroad will be regarded in this discussion as perpendicular to the street. The train was traveling from west to east at a speed estimated by witnesses at from 50 to 70 miles per hour. The engineer, Fox, testified that the train was going 55 miles per hour. A municipal ordinance limited Two witnesses estimated the speed of the automobile at between 20 and 30 miles per hour. The fireman, Long, saw the automobile that last 100 feet before the collision and testified that he did not know the speed of the automobile. Long thought the car was about the same distance from the crossing as the train and thus, by inference, fixed the speed of the car at the same speed as that of the train, 55 miles per hour.

the speed of trains to thirty miles per hour at the time and place of collision.

The evidence seems to be undisputed that the automobile did not stop or reduce its speed as it approached the crossing. There were flashing lights at the crossing and they were operating.

The testimony indicates that the autmoibile collided with the engine at 'About the left front wheel . . . the left part of the pilot.' As we understand it, the automobile and engine arrived at the crossing simultaneously.

There is testimony that the train whistle began blowing approximately a quarter of a mile from the crossing and continued to blow until the engine reached the crossing. One witness said he heard the whistle blow only once.

The automobile was demolished and knocked 98 feet. The engine came to a stop 2,544 feet east of the crossing.

The case went to the jury on two counts, one charging that '. . . a servant or agent of the defendants . . . wantonly injured plaintiff's intestate . . ..' Defendants pleaded in short by consent, with leave, etc.

In oral charge, the court read to the jury § 173, Title 48, Code 1940. ¹ Defendants excepted as follows:

'MR. CLARK: Yes, sir. All right. We except to that part of the charge of The Court. And then we also except to 173, the reading of 173, and particularly--if I could borrow your book on that, Judge.

'THE COURT: Sure, help yourself.

'MR. CLARK: And particularly that part of it which read as follows: 'And when any person or stock is killed or injured, or other property destroyed or damaged by the locomotive or cars of any railroad, the burden of proof, in any suit brought therefor, is on the railroad company to show a compliance with the requirements of such sections, and that there was no negligence on the part of the company or its agents.' And in doing so, in making that exception, we state that it is our contention and our position that as interpreted by the Court as a proper instruction to the jury, if that is the meaning of that statute it would be unconstitutional as violative of due process of law under the federal constitution. And I will be glad to give you the citation on that if necessary. I just wanted to be sure that--and under the state constitution that it would be a--that it would be against due process of law for such a burden of proof to be placed upon the defendant.

'And we say furthermore that the plaintiff in the case assumed, in addition to all of that, assumed the burden of proof.

'THE COURT: Well, that gets that.'

Defendants severally assign for error the action of the trial court in reading to the jury the quoted last clause of § 173.

The defendant railroad contends that, although § 173 is not unconstitutional on its face, reading it to the jury violates defendant's right to due process under the 14th Amendment of the Constitution of the United States, and that, if the statute is to be construed as a proper charge to the jury in a case where the defendant railroad has produced evidence acquitting itself of negligence, then § 173 does violate the 14th Amendment and reading § 173 to the jury deprives the defendant railroad of its property without due process of law.

Plaintiff says that defendants did not properly except to the charge so as to raise in the trial court the objection now urged on appeal, and, therefore, that defendants are not entitled now to raise that objection in this court, citing Stein v. Ashby, 30 Ala. 363.

In the cited case, Ashby sued Stein for damages caused by diversion of the water of a creek. On verdict of a jury, judgment was rendered for plaintiff and defendant appealed. On the trial, defendant Stein excepted to the 'second charge,' "on the ground that it was abstract; insisting that there was no evidence tending to show the actual possession by plaintiff of the land on Or near the creek within the disputed territory." This court said that defendant was under no obligation to confine his exception to the charge to the single ground specified by him; but, having elected to do so, the court will confine him to that ground and hold that he was waived all other grounds. This court held further that no injury could have resulted to defendant from the fact that the charge was abstract and said that it is settled that an abstract charge, from which no injury results to the party excepting to the charge, furnishes no ground for reversal of the judgment. This court affirmed the judgment for plaintiff.

Neither the opinion nor the original record shows precisely whether the 'second charge' in Stein was a charge requested by plaintiff or part of the oral charge. We think the 'second charge' was probably a charge given at the request of plaintiff and not a part of the court's oral charge. It may be, but we do not decide, that the rule of Stein has been changed by the statute, § 818, Title 7, which applies to requested charges and now provides that it is not necessary for a party to except to the ruling of the court in giving or refusing a charge requested in writing. See Cutcliff v. Birmingham R. Light & Power Co., 148 Ala. 108, 41 So. 873, where the court held that a party who had consented to the giving of a requested charge could not afterwards complain. In any event, under the statute, a party is not required to state a reason for excepting to a requested written charge. It may be that if a party chooses to state the ground why he thinks a requested charge is bad, then the exceptor would be confined on appeal to the ground stated to the trial court, but this writer does not recall a record in which a party has stated any ground for objecting to a charge requested by the other party nor any other record in which a party stated any ground or reason for excepting to a part of the court's oral charge. We do not think a party is required to state any reason for excepting to the oral charge.

Whatever may be the rule confining a party to the reason stated to the trial court in excepting to the oral charge, we are of opinion that defendants in the instant case stated sufficiently the same reason which is urged on this appeal with respect to reading § 173 to the jury. Defendants say now that § 173, when applied as construed by this court in Louisville & Nashville R. Co. v. Green, 222 Ala. 557, 133 So. 294, does not violate the due process clause of the 14th Amendment; but, when § 173 is read in charge to the jury, where the railroad has produced evidence which supports a finding acquitting the In reserving exception, the defendants said in the trial court: '. . . it is our contention and our position that as interpreted by the Court as a proper instruction to the jury, if that is the meaning of that statute it would be unconstitutional as violative of due process of law under the federal constitution. And I will be glad to give you the citation on that if necessary.'

railroad of actionable negligence, then such a construction of § 173 deprives the railroad of due process of law and contravenes the 14th Amendment.

We are of opinion that the statement to the trial court is sufficient to entitle defendants to raise on appeal the objection that reading § 173 to the jury in the case at bar constituted a denial of due process under the authorities hereinafter discussed.

Defendant railroad relies on Western & Atl. R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884, ² decided in 1929 '. . . Our statute simply means that, when injury is shown by a railroad, the plaintiff makes out a prima facie case, and that the burden is then shifted to the railroad to rebut or overcome said prima facie case by introducing evidence sufficient to dispute or overcome the said prima facie case of the plaintiff. This may be done by undisputed facts sufficient to rebut the prima facie case, and, when so done, would entitle the defendant to the affirmative charge. On the other hand, if the plaintiff makes out a prima facie case and in doing so does not acquit the defendant of negligence or does not also show sufficient evidence to take the negligence to the jury, and this was all, the plaintiff would be entitled to the general charge. The plaintiff Among authorities which appear to us to support our holding are the following: Seaboard Air-Line Ry. Co. v. Fountain, 173 Ga. 593, 160 S.E. 789; Powell v. American Sumatra Tobacco Co., 154 Fla. 227, 17 So.2d 391; New Orleans & G.N.R. Co....