Atlantic Coast Line R. Co. v. Kines

• Citation: 276 Ala. 253,160 So.2d 869
• Decision Date: 17 October 1963
• Docket Number: Nos. 6,6 Div. 601,s. 6
• Parties: ATLANTIC COAST LINE RAILROAD CO. v. Daniel E. KINES. ATLANTIC COAST LINE RAILROAD CO. v. Ethel KINES. Div. 600,
• Court: Supreme Court of Alabama

Page 869

160 So.2d 869

276 Ala. 253

ATLANTIC COAST LINE RAILROAD CO. v. Daniel E. KINES.

ATLANTIC COAST LINE RAILROAD CO. v. Ethel KINES.

Nos. 6 Div. 600, 6 Div. 601.

Supreme Court of Alabama.

Oct. 17, 1963.

Rehearing Denied Feb. 27, 1964.

Peyton D. Bibb and Graham, Bibb, Wingo & Foster, Birmingham, for appellant.

Hare, Wynn & Newell and Bibb Allen, Birmingham, for appellees.

COLEMAN, Justice.

This is an appeal by one of three defendants from judgments for plaintiffs in two consolidated actions for personal injury to a woman who was riding as a passenger in an automobile when it collided with a train operated by appellant.

The injured woman is plaintiff in one action and her husband is plaintiff in the other. Except on the issue of excessiveness of verdict and the elements of damage, we see no difference between the two appeals as to the errors insisted on. For brevity, and perhaps for easier understanding of the points considered, we will write to the wife's case and refer to her as plaintiff.

The plaintiff brought action against three defendants, namely; the appellant corporation, which is the master or employer who operated the train; Walter H. O'Neal, the engineer employed by appellant to operate the engine; and B. Bartlett, employed by appellant as conductor.

The jury returned verdict for $87,500.00, against appellant and for the engineer and conductor. Judgment was rendered accordingly. Appellant's motion for new trial was overruled.

Collision occurred near the hour of midnight at a grade crossing of Avenue V by appellant's track in Birmingham. The crossing appears to be at right angles. The train approached from the west and the automobile from the north.

The defendant engineer was in charge of the engine. He was on the right or south side of the engine. The fireman, Derico, who was not made a defendant in the action, was in the fireman's seat on the left or north side of the engine. The brakeman, Long, who also was not made a defendant, was between the fireman and the engineer. Appellant summarizes some of the evidence as follows:

'Fireman Derico was keeping a lookout ahead and to the left on his side (R. 461). When he first saw the lights of the automobile, approaching the crossing from his side, the front of the locomotive was near the crossing and at a point which he later stepped off as 14 steps (3 feet to the step) from the near, or west, edge of Avenue V (R. 435). The automobile was then (when its lights were first seen) at a point up by the house shown on the diagram just north of the crossing and about the street turn-off from Avenue V, and which point he later stepped off as 142 feet from the track (R. 435, 455, 472). When he first saw the lights of the auto he could not tell how fast it was going (R. 455) or whether or not it was slowing down (R. 435). When the auto came on further into his view and to about halfway from where it was when he first saw it, he could then tell that the auto did not appear to be slowing down and he immediately hollered to the engineer (R. 436, 457) who immediately put the brakes in emergency. When Fireman Derico hollered to Engineer O'Neal the front of the engine was four steps from the near curb of Avenue V (R. 436, 438) and Engineer O'Neal was already blowing a blast of the whistle and continued to blow the whistle as the engine passed over the crossing (R. 440, 463). There was nothing else the engineer could have done to stop the train any quicker (R. 461) and it was impossible for it to be stopped before reaching the street. (R. 457)

'The auto did not stop and it hit the engine right under where Fireman Derico was sitting on the left side of the engine cab, (R. 437) which was right above the left front trucks of the engine. As fireman he had nothing to do with the brakes, the whistle or the bell (R. 510).'

The engineer never saw the automobile before the collision. There is evidence to support the conclusion that the left front of engine hit the automobile.

Plaintiff had been working as a waitress at a restaurant. She was riding home from work with three other women, who suffered injury in the collision. Plaintiff was merely a passenger and not the driver of the automobile.

The complaint consisted of two counts. Count One recites:

'. . . that the defendants negligently caused or negligently allowed the railroad engine they were operating as aforesaid to collide with the vehicle in which plaintiff was riding as aforesaid, and as a proximate consequence of said negligence, plaintiff suffered the aforesaid injuries and damages.'

Count Two recites:

'. . . And plaintiff avers that on said occasion the defendants, Walter H. O'Neal and B. Bartlett, who were then and there servants or agents of the defendant, Atlantic Coast Line Railroad Company, a Corporation, while acting within the line and scope of their employment as such servants or agents, wantonly injured the plaintiff by wantonly causing or wantonly allowing the railroad engine, of which they were in charge and control as aforesaid, to collide with the vehicle in which plaintiff was riding as aforesaid, and as a proximate consequence of said wanton conduct of defendants, plaintiff suffered the aforesaid injuries and damages.

'This Count is drawn under and by virtue of the act of the Legislature of the State of Alabama entitled 'Statutory suit against principal and agent or master and servant.' Said act being otherwise described as Title 7, Section 176(1)(2)(3)(4)(5)(6), of the Code of Alabama, as amended.'

Defendant pleaded in short by consent with leave, etc. At the conclusion of the evidence, plaintiff struck the so-called wanton count and the case was submitted to the jury on the negligence count only.

Appellant has assigned 55 errors in the wife's case and 47 errors in the husband's case. Many of the assignments in the two cases are identical. We will not undertake to discuss seriatim the assignments argued, but will consider each proposition relied on for reversal as we understand appellant's brief.

A, B, & C.

In support of various assignments which assert that the court erred in overruling appellant's motion for judgment notwithstanding the verdict, in overruling appellant's motion to arrest entry of judgment, in overruling appellant's motion to expunge or vacate the judgment, in portions of the oral charge, and in overruling appellant's motion for new trial appellant argues two propositions to show error.

First.--Appellant asserts that because of Act No. 544, approved September 18, 1957; Acts of Alabama 1957, Vol. II, page 765; Code Recompiled 1958, Title 7, §§ 176(1)-(6); there can be no recovery against the master, when a servant or servants is made defendant, unless there is also a recovery against one or more of such servants so made defendants to the action; that in the instant case there was no recovery against either servant or employee who was joined as defendant; and, therefore, there could be no recovery against the appellant who was the master.

Appellant relies on that provision of Act No. 544 which recites as follows:

'Section 4. In all such actions recovery may be had against the agent, servant or employee although no recovery is had against the principal or master, but there shall be no recovery against the principal or master unless there is a recovery against the agent, servant or employee.'

Appellant's argument is substantially comprehended in the following excerpt from its brief:

'As stated, this 1957 Act does cover the field completely. It makes no exceptions. It makes no exception in the sweep of the provisions of Section 4. It recognizes no exception, in the provision that 'there shall be no recovery against the principal or master unless there is a recovery against the agent, servant or employee', joined as a defendant. It does not permit the contention, recognized in decisions rendered before its passage, that a recovery against the master alone could be justified by some sufficient evidence of negligence on the part of some other employee who was not joined. Such avenue has been closed by the statute which abolishes the previous procedure and forms of action, changes the statute of limitations in material respects and expressly provides that there shall be no recovery against the master unless there is a recovery against the employee joined and tried as a defendant. On the very face of the Act, the verdict of the jury acquitting the employees acquitted the Appellant and the judgment against Appellant is a nullity.'

We do not agree that Section 4 of Act No. 544 applies to all actions against master and servant. Section 4, by its terms, applies to 'all such actions.' It seems to us that the words, 'such actions,' refer to the form of action created by Act No. 544, that is, 'the statutory suit against principal and agent or master and servant.' We are of opinion that Section 4 does not apply to any action other than the 'statutory suit' created by Act No. 544.

This we hold because of the rule that a statute which is an innovation upon the common law will not be extended further than is required by the letter of the statute; Lock v. Miller, 3 Stew. & Porter 13; Mobile Battle House, Inc. v. Wolf, 271 Ala. 632, 126 So.2d 486.

As it appears to us, the language of Act No. 544 does not, in actions other than the statutory action created by that act, either expressly or by implication, undertake to abolish the right of a plaintiff to recover against the master for negligence of a servant who was not made a defendant to the action, although the jury exonerate a servant who was made such a defendant.

Where liability of the master may be rested on account of the negligence of employees other than the employee who was made a defendant, a verdict against the master, but exonerating the employee who was made a defendant, is not inconsistent. F. W. Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534; Pollard v. Coulter, 238 Ala. 421, 191 So. 231; ...