Alabama Great Southern R. Co. v. Fulton

• Decision Date: 07 April 1907
• Citation: 150 Ala. 300,43 So. 832
• Parties: ALABAMA GREAT SOUTHERN RAILROAD CO. v. FULTON.
• Court: Alabama Supreme Court

43 So. 832

150 Ala. 300

ALABAMA GREAT SOUTHERN RAILROAD CO. v. FULTON.

Supreme Court of Alabama

April 7, 1907

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by James A. Fulton against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This action was brought to recover damages alleged to have been suffered by plaintiff by reason of the negligence of the defendant's employés. A full statement of the pleadings and facts necessary to an understanding of this cause can be found in a report of the case on pages 332 to 342, inclusive of 144 Ala., and on page 283 of 39 South. On this trial counts 3, 5, and 6 were not charged out, and the demurrers to them were overruled. When the case was formerly here, the court had eliminated these counts by giving the affirmative charge as to them. These counts allege wanton and willful conduct on the part of the engineer, and in other respects are similar to counts 4 and 10, found in the statement of facts on pages 334, 335, 144 Ala., and page 283, 39 South except that after the words, "at which said mule became much frightened and agitated," the balance of the count was struck out and the following added: "And plaintiff further avers that the engineer or other employés of the defendant in charge of said engine saw or knew, or by the exercise of ordinary diligence or care could have seen or known, that said mule was about to run away and was becoming unmanageable, yet the said engineer or other employé willfully, wantonly or intentionally continued to run or move said engine in the direction of the plaintiff, and at or just before reaching the point opposite and near to plaintiff the said engineer or other employé willfully, wantonly, or intentionally caused or allowed a large quantity of steam or other substance to be unnecessarily or recklessly emitted or ejected from said engine, or willfully, wantonly, or intentionally caused the whistle of said engine to be unnecessarily sounded or blown, the sight and noise of which so frightened said mule that he did run away, and in consequence thereof plaintiff was violently thrown from said vehicle to the ground," etc. On this trial the court was requested to give the following charges for the defendant which the court refused: Charges 1, 2, and 3 were the affirmative charges as to the fourth and tenth counts and the general affirmative charge. Charge 4 was the general charge as to the eleventh count. Charge 20 was as follows: "The court charges you, gentlemen of the jury, that, if your verdict should be for the plaintiff, you cannot assess any punitive or exemplary damages or smart money in his behalf and against the defendant. You can only find in his favor such damages as in your judgment will reasonably compensate him for his injury claimed in the complaint and shown by the evidence." There was verdict and judgment for plaintiff in the sum of $1,250.

E. D. & A. G. Smith, for appellant.

Ward & Drennen, for appellee.

TYSON C.J.

When this case was here on former appeal, the principles controlling its determination were stated to be these "The plaintiff, of course, had a right to be where he was and as he was when he was injured in...