Ashworth v. Alabama Great Southern R. Co.

• Decision Date: 07 February 1924
• Docket Number: 6 Div. 941.
• Citation: 211 Ala. 20,99 So. 191
• Parties: ASHWORTH v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

99 So. 191

211 Ala. 20

ASHWORTH v. ALABAMA GREAT SOUTHERN R. CO.

6 Div. 941.

Supreme Court of Alabama

February 7, 1924

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action for damages by Robert Ashworth, as administrator of the estate of William J. Thomas, against the Alabama Great Southern Railroad Company. From a judgment for defendant plaintiff appeals. Reversed and remanded.

The following charges were given at defendant's request:

"(34) It is not necessary under the evidence in this case that Mr. Ratteree should have been in actual danger of death or great bodily harm at the time he killed plaintiff's intestate, in order for him to be justified in killing said intestate. Ratteree had a right to act on the appearance of things at the time, taken in the light of all the evidence and he had a right to interpret the conduct of plaintiff's intestate, in the light of any threat that the evidence proved plaintiff's intestate to have made against Ratteree. If the circumstances attending the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death and Ratteree honestly believed such to be the case, then he had a right to strike in his own defense, although as a matter of fact he was not in actual danger, and, if the jury believe from the evidence that Ratteree acted under certain conditions and circumstances as above set forth, the burden of showing that he was not free from fault in bringing on the difficulty is on the plaintiff, and, if not shown, you cannot find for the plaintiff."

"(45) If you believe from the evidence that Mr. Ratteree lawfully arrested plaintiff's intestate for some offense, and that said intestate escaped and left the train, and later returned for the purpose of doing violence to Mr. Ratteree, and that said intestate attempted to accomplish his purpose upon his return to the train, and that Mr. Ratteree was ignorant of his return until the difficulty started, then as a matter of law Mr. Ratteree was free from fault in bringing on the difficulty that resulted in the death of plaintiff's intestate.

"(46) If you believe from the evidence that Mr. Ratteree was in actual imminent peril of his life or serious bodily harm when he shot plaintiff's intestate, and that Mr. Ratteree was free from fault in bringing on the difficulty, then it is immaterial whether Mr. Ratteree honestly believed he was in such peril or not. Under such circumstances he would have the right to shoot and kill plaintiff's intestate, even though he might not have believed that he was in peril.

"(47) If you believe from the evidence that the circumstances attending the killing were such as to justify a reasonable belief that Mr. Ratteree was in danger of great bodily harm or death, and that he honestly believed such was the case, and that he was free from fault in bringing on the difficulty, then Mr. Ratteree had a right to shoot the deceased in his own defense, although as a matter of fact, Mr. Ratteree was not in actual danger."

"(49) If, under the evidence in this case, you would not return a verdict against Mr. Ratteree were he a party defendant in this case, then you cannot return a verdict against the defendant Alabama Great Southern Railroad Company."

"(59) The court charges the jury that any conduct of Mr. Ratteree which was reasonably related to and connected with an effort on his part to arrest the deceased in a lawful and proper manner would not in law be held against Mr. Ratteree as placing him at fault in bringing on the difficulty that resulted in the death of the deceased."

"(61) While the court has charged you that the burden of proof is on the defendant to show that officer Ratteree acted in self-defense in killing the deceased on the occasion complained of, it is only necessary for the defendants, in the discharge of that burden to show that Mr. Ratteree was in imminent peril of life, or great bodily harm at the hands of the deceased, or that the circumstances attending the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he honestly believed such was the case, and under such circumstances shot the deceased. When the defendants have shown this by the evidence in the case, the law says that the burden is on the plaintiff to reasonably satisfy the jury that Mr. Ratteree was not free from fault in bringing on the difficulty, and the law goes further and says, that, if the plaintiff has not discharged that burden, then the plaintiff cannot recover in this case."

The following charges were refused to plaintiff:

"(1) To make out a case of justifiable self-defense, the evidence must show that the difficulty was not provoked or encouraged by the defendant's agent, servant, or employee, said W. B. Ratteree; that the said Ratteree was, or appeared to be, so menaced at the time as to create reasonable apprehension of danger to his life, or of grievous bodily harm, and that there was no other reasonable hope of escape from such present, impending peril."

"(6) The court charges the jury that to make the plea of self-defense available to the defendant in this case the burden is upon the defendant to reasonably satisfy the jury from all the evidence that the defendant's servant, agent, or employee, W. B. Ratteree, was free from fault in bringing on the difficulty.

"(7) In filing a plea of self-defense, the defendant assumes the burden of reasonably satisfying the jury by the evidence of the following propositions: (a) That the defendant's agent, servant, or employee, Ratteree, was absolutely free from fault in bringing on the fatal difficulty. (b) That said Ratteree at the time of the killing of plaintiff's decedent was in imminent peril of life or limb, or from the circumstances he had an honest belief at the time of the killing the deceased, that he was in danger of life or limb at the hands of the deceased. (c) That the said Ratteree used no more force than was necessary to repel the force offered or threatened."

On the trial

Mrs. Kathryn Shepherd was examined as a witness for plaintiff, and testified that she was the mother of deceased; that deceased was 21 years old, and had left home some time prior to the occurrence resulting in his death. On cross-examination by defendant the witness was asked these questions:

"And if his (deceased's) father didn't marry another woman, and he didn't jump on the woman and beat her up, and that is the reason he left Baltimore?"

Plaintiff's objection being sustained, defendant's counsel remarked, "I have got a right to show the character of the man," and asked this question:

"He got a dishonorable discharge from the navy, didn't he?"

Plaintiff's objection was sustained, and defendant's counsel asked this question:

"I will ask you if he hadn't consistently been in trouble in the way of fights or assaults, or matters of that kind, for the last 4 or 5 years?"

The court sustained objection to the question, stating:

"Counsel would have a right to show the bad-have a right to show that, the bad or blood-thirsty character of the deceased. I will allow counsel to state that, and go on further. I will instruct counsel not to ask any further questions along that line."

Defendant's counsel then excepted to the ruling, and offered "to meet your honor's ruling *** to show the particulars of a difficulty in Philadelphia, and also in Lenoir City, Tenn., with other parties, by the deceased, and that he was a fugitive from justice from those places."

Plaintiff objected, and the court remarked:

"No, counsel would have a right-he can offer to show, and must state generally, what the result of the question would be. I simply instruct counsel not to go into details of anything that tended to show bad character."

On the examination by defendant of its witness Hood, this question was asked:

"When did you first see this hobo, Thomas (deceased)?"

Plaintiff objected to the use of the term "hobo" in the presence of the jury. Defendant's counsel remarked, "That is what he was," and on plaintiff's further objection the court stated:

"So far as what statements are made by" respective counsel, "they are not to be taken as evidence in the case, gentlemen of the jury; it is not to be considered by you as part of the evidence. You will take the evidence from the stand."

The plaintiff moved for a new trial upon the ground, among others, that since the trial plaintiff had discovered new, additional, and material evidence, which was not shown, and by the exercise of reasonable diligence could not have been ascertained before the trial.

In support of the motion plaintiff submitted the affidavit of Homer Trucks, in substance as follows: Affiant is a boy 15 years old, and was at or near Trussville on the date of the occurrence involved in this suit, and was playing with other children in a pasture adjacent to the defendant's right of way; that affiant saw a man walking past the train, which had stopped, on the opposite side from affiant, and, when he had proceeded to some 10 feet beyond "the last caboose" in the train, turned and asked one of the men at the caboose, "couldn't they pull it"; that there was one man standing in the back door of the caboose and another man standing on the ground with a gun in his arms; that when the man asked the question the man with the gun drew the gun on him and fired, and the man fell; that his body was placed on the front end of the last caboose; that the dead man was standing with his hands down, with nothing in his hands, and made no threats or movements toward the caboose or the train crew.

In further support of the motion plaintiff submitted the affidavit of James H....