Alabama Great Southern R. Co. v. Evans
| Citation | 288 Ala. 25,256 So.2d 861 |
| Decision Date | 06 January 1972 |
| Docket Number | 6 Div. 801 |
| Parties | The ALABAMA GREAT SOUTHERN RAILROAD COMPANY, a Corporation v. Junie Viola Chambers EVANS, who sues in her capacity as Executrix of the Estate of her deceased husband, W. R. Evans. Junie Viola Chambers EVANS, Executrix v. Jesse SAHM. and 816. |
| Court | Supreme Court of Alabama |
Cabaniss, Johnston, Gardner & Clark and Crawford S. McGivaren, Jr., Birmingham, for appellant.
Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee and cross-appellant.
Plaintiff, Junie Viola Chambers Evans, who sued as Executrix of the Estate of her deceased husband, W. R. Evans, was awarded $25,000 against the Alabama Great Southern Railroad in a wrongful death action. The railroad appealed from the $25,000 judgment and from the judgment of the trial court in overruling its motion for a new trial.
The cause was submitted to the jury on three counts. Counts three and five of the complaint relied solely on the conduct of the railroad's engineer, Jesse Sahm, and since the jury exonerated Jesse Sahm, each party agrees that under established principles, the verdict against the railroad solely cannot be related to either of these two counts. Count four, however, did not rely solely on the conduct of engineer Sahm, but alleged that Evans' death and property damage were the proximate consequence of the defendants' negligently causing or allowing a train of the defendant railroad and operated by the defendant Sahm, while acting within the line and scope of his employment by the defendant railroad, to run into, upon and against the automobile operated by Evans at a public crossing in the City of Fort Payne. Both parties to this appeal agree that in order to sustain the verdict, there must have been evidence of negligence on the part of agents of the railroad other than that of the engineer, Sahm. The railroad's argument here is that the jury verdict was against the great weight and preponderance of the evidence, and, consequently, the lower court should have granted its motion for a new trial.
Since the sufficiency of the evidence is at issue, we briefly set out some of the tendencies of the evidence.
The collision between the train and the deceased's automobile occurred on Hulgan Road, near U.S. Highway 11, in the southern portion of the City of Fort Payne, at a point where Hulgan Road runs by the M & S Steel Company plant and where Hulgan Road is crossed by the track of the railroad. The track ran north and south and the roadway ran east and west.
The train was proceeding south at a speed of approximately 70 miles per hour at the time of the collision. The deceased was proceeding west in his car. After striking the car in which the deceased was riding, the engine stopped .8 of a mile from the crossing. The car was completely demolished and the body of the deceased was crushed and decapitated.
The crossing was approximately one mile inside the city limits of Fort Payne, as extended by Act No. 77, 1967 Acts, p. 108, some seven months prior to the accident. Neither the engineer nor the fireman knew that the city limits had been extended by law. Both knew the speed limit for locomotives within the city limits of Fort Payne had been 30 miles per hour since 1937.
There was some testimony, although conflicting, that there was substantial traffic across the tracks at the crossing during the day. Testimony of witnesses and exhibits show that bushes, trees and high grass were along the tracks (the side from which Evans approached the tracks) in the northeast quadrant of the intersection, which the jury could have found would have obstructed Evans' vision up the tracks. Evidence was presented to the effect that the growth of weeds and bushes along the right-of-way obstructed vision to the point that a motorist would have to pull upon the track in order to see the block signals located .3 of a mile up the track from the crossing. There was evidence that the fireman was riding in the cab of the engine and was twelve or thirteen feet above the level of the tracks and that the height of bushes and trees prevented his seeing the Evans car during the entire time as the train and car approached the crossing. The fireman testified that he first saw the car when the train was approximately 1400 feet from the crossing. He said that he lost sight of the car because of the growth along the eastern side of the track and saw the car again when the car was 50 feet from the crossing and the train was 250 feet from the crossing.
There were no crossbucks, stop signs or flashing signals of any kind at the crossing at the time of the accident. The plaintiff alleged, and the jury could have found, that the Hulgan Road crossing was a public crossing.
The engineer testified that his time card indicated 'a 30 mile an hour speed restriction through Fort Payne' at the time of the accident and that no agent of the railroad charged with the responsibility of advising him about restrictions had told him that the city limits of Fort Payne had been changed. He said that the superintendent of the railroad in Fort Payne would have been responsible for putting out a bulletin on the speed limit change. He testified that the outstanding instructions from the railroad given to him were to the effect that he could travel at the Hulgan Road crossing at a maximum speed of 80 miles per hour, subject to special conditions which the jury could have found were not applicable in this case.
The verdict of the jury and the judgment of the court exonerated the engineer of the train, Jesse Sahm. By such verdict and judgment, the railroad was exonerated as to any possible culpable conduct on the part of Jesse Sahm and this acquittal of the engineer by the verdict and judgment means any consideration of evidence of negligence on his part must necessarily be eliminated in determining the soundness of the verdict against the railroad, road, (Louisville & Nashville R.R. Co. v. Simmons, 251 Ala. 131, 36 So.2d 460 (1948)), since it is firmly established that a judgment exonerating the servant relieves the master when the servant's conduct is the only basis of liability against the master.
One of the questions presented by this appeal is whether the verdict in this case as to the negligence of some agent, servant or employee of the railroad, independent of any negligence on the part of Jesse Sahm, the engineer, is contrary to the great weight and preponderance of the evidence in this case. To answer this question, we are guided by some well known principles of law, including one that verdicts are presumed to be correct, and no ground for the granting of a new trial will be more carefully scrutinized or more rigidly limited than that the verdict is contrary to the weight of the evidence. Bagley v. Green, 277 Ala. 118, 167 So.2d 545 (1964). The refusal of the trial judge to grant a new trial on the ground that the verdict is contrary to the weight of the evidence will not be reversed unless, after allowing all reasonable presumptions as to its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court reviewing the cause on appeal that it is wrong and unjust. Louisville & Nashville R.R. Co. v. Crim, 273 Ala. 114, 136 So.2d 190 (1961); Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891); Southern Railway Co. v. Reeder, 281 Ala. 458, 204 So.2d 808 (1967).
The jury had a right to determine that, even though engineer Sahm was operating the engine along the track, he was operating it at a speed which his superiors had failed to tell him was impermissible. The engineer testified that he had operated the train in accordance with legal speed limits at all other crossings in Fort Payne in accordance with instructions which he had. In view of this evidence, the jury was authorized to find that the failure of the engineer's superiors to exercise ordinary and reasonable care by changing his instructions was negligence which proximately caused the injuries and damages made the basis of this action.
We have carefully examined the testimony and the exhibits and we are persuaded that the appellant has not sustained the burden of overcoming the presumption that the verdict is correct.
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