Alabama Midland Ry. Co. v. Johnson

• Decision Date: 08 June 1899
• Citation: 123 Ala. 197,26 So. 160
• Parties: ALABAMA MIDLAND RY. CO. v. JOHNSON.
• Court: Alabama Supreme Court

26 So. 160

123 Ala. 197

ALABAMA MIDLAND RY. CO. v. JOHNSON.

Supreme Court of Alabama

June 8, 1899

Appeal from circuit court, Henry county; J. W. Foster, Judge.

Action by Wash Johnson against the Alabama Midland Railway Company to recover damages for personal injuries alleged to have been caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff claimed $2,000 damages, and it was averred in the complaint that the plaintiff was a passenger on one of the trains of the defendant; that when the train arrived at Ashford, the place of plaintiff's destination, an employé of the road called out the station, and that as the plaintiff was in the act of getting off of said train, after it had stopped, the train was violently jerked or pulled forward thereby throwing the plaintiff from the train to the ground breaking three of his ribs, and causing other serious internal injuries; that plaintiff's injuries were caused by reason of the failure of the train to stop at said station a sufficient length of time to allow the plaintiff to alight therefrom by the exercise of due care and diligence; and that said violent jerking and pulling forward of the train were caused by the negligence of the defendant. The defendant pleaded only the general issue. The tendencies of the evidence, as shown on the trial of the case, are sufficiently shown in the opinion. The defendant requested the court to give to the jury the general affirmative charge in its behalf, and duly excepted to the court's refusal to give said charge as asked. After the return of a verdict assessing the damages at $400, the defendant moved the court to set aside said verdict and to grant it a new trial, assigning as grounds therefor (1) that said verdict was contrary to the evidence; (2) that said verdict was contrary to the charge of the court; (3) that the damages were excessive,-and "on the further ground of newly-discovered evidence, in that defendant had discovered since the trial of this case that J W. McIntyre, a reputable citizen, a merchant doing business in Ashford, Ala., was on the depot platform when plaintiff was alleged to be injured, May 24, 1897, and saw the said train arrive and stop; that he (McIntyre) saw said plaintiff Johnson, come out of the car, stop and talk to a man on the platform of the car until the train started; that after the train started, and had gone from ten to fifteen feet, said plaintiff, Johnson, who had hold of the guard of the steps turned loose said guard or rail, and fell or jumped off said train while in motion; that there was no jerk when said train started, but ordinary usual start. This evidence has just been discovered by defendant, in that defendant's attorney or representatives were unaware of said witness' presence on said occasion until the notoriety incident to trial caused a discussion of said case, and defendant first learned of knowledge of said witness. Defendant attempted to get the name of parties who were present on said 24th day of May, 1897, and summon them as witnesses, but did not know said witness was present." On the hearing of said motion the court introduced in support of it the affidavit of John McIntyre, in which he stated the facts substantially as stated in the grounds for the motion for a new trial. The defendant also offered in support of said motion the affidavit of A. A. Wiley, Esq., one of the attorneys for the defendant, in which he stated "that he is division counsel for defendant railroad; that when report of accident to plaintiff was brought to attention of affiant, that immediate steps were taken to find out the facts incident to said transaction, and the witnesses thereto; that, after careful investigation and inquiry, affiant was unaware of the fact that Mr. John W. McIntyre witnessed the accident; that owing to the entire disinterestedness of said McIntyre, and his high position and standing at Ashford, his testimony would have been secured, if it had been known to affiant that affiant's first information as to said testimony or knowledge of said McIntyre was acquired after the trial of said case, and resulted, as stated in said affidavit, from discussion of the case, and notoriety incident to the trial. Affiant further states that he, as the attorney of defendant having the trial of said case personally in hand, personally and through agents of the defendant took immediate and vigilant steps to ascertain the name of every person who was present at the time of the alleged accident, or had any knowledge thereof, with the object in view of obtaining all possible light touching the same; that affiant never had any information or knowledge of the presence of said McIntyre, or that he would be a valuable witness for defendant, until after the trial of said cause as aforesaid, and thereupon he took immediate action to procure his presence and sworn...