Atlantic Coast Line R. Co. v. Jackson

• Citation: 225 Ala. 652,144 So. 813
• Decision Date: 17 November 1932
• Docket Number: 4 Div. 660.
• Parties: ATLANTIC COAST LINE R. CO. v. JACKSON.
• Court: Alabama Supreme Court

144 So. 813

225 Ala. 652

ATLANTIC COAST LINE R. CO. v. JACKSON.

4 Div. 660.

Supreme Court of Alabama

November 17, 1932

Rehearing Denied Dec. 22, 1932.

Appeal from Circuit Court, Dale County; J. S. Williams, Judge.

Action for damages by Judge Jackson against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

A. H Arrington, of Montgomery, for appellant.

Sollie & Sollie, of Ozark, for appellee.

FOSTER J.

This case was tried upon subsequent negligence counts-a somewhat different theory than that of the first trial. 221 Ala. 646 130 So. 388.

If we concede the contention of appellant that as some of such counts do not affirm that knowledge of the peril of plaintiff's truck was had by defendant's servants in the operation of its train, and that knowledge of the mere fact that the truck was stopped upon the track does not as a matter of law charge knowledge of the fact that the person in its charge was either not able or willing to extricate it ( Northern Ala. R. Co. v. Elliott, 219 Ala. 423, 122 So. 402; 20 R. C. L. 143, § 117; 52 Corpus Juris 366; Central of Ga. R. Co. v. Blackmon, 169 Ala. 304, 53 So. 805), it does not follow that such defect should cause a reversal of the case. The rule is that when a count states a cause of action, though there may be some defect which is pointed out by demurrer, if the action is tried upon the theory that such averment is made, and the jury is required to find in accordance with the correct rule in that respect the error is held to be without prejudice. So. R. Co. v. Dickson, 211 Ala. 481, 100 So. 665; Best Park, etc., Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929.

If the counts were technically defective in not alleging knowledge of the peril of the truck, but only knowledge that it was stopped upon the track, we note that charge No. 16, given for appellant, places the burden upon plaintiff to show that defendant's servants in charge of the train became aware of the peril to plaintiff's truck in time to avoid running against it.

The general oral charge also indiscriminately refers to knowledge of the peril to the truck, and knowledge of its presence upon the track, as, under the circumstances, one was equal to the other. Such is the legal status if there is also knowledge that the truck will not likely be moved off the track-for it to remain is of course perilous. No complaint was made of such treatment by the court. That aspect of the court's charge, made plain by given charge 16, we think, relieves the claim of defective averment on that subject from prejudicial effect.

Objection is further made to the counts that they do not allege that defendant's servants, etc., charged with negligence, were in the operation of the engine. If there be any lack of clearness in this respect, it is sufficient to say that the negligent act is not charged to the servants, etc., of defendant. But it is charged to defendant. The added averment that it was done through agents or servants does not require the averment either that they were in the line or scope of their authority or the nature of their line of duty. A corporate act of negligence is charged. It could not have been done by the defendant except through some agent or servant in charge of the operation of the engine. Alabama Power Co. v. Conine, 207 Ala. 435, 93 So. 22; Ala. Power Co. v. Edwards, 219 Ala. 162, 121 So. 543.

When negligence is thus charged to defendant, it may be proved by the negligence of any of its agents in the line and scope of their authority. Goodgame v. Louisville & N. R. Co., 218 Ala. 507, 119 So. 218.

It is the defendant which was alleged to have been operating the train. It is the defendant which is alleged to have had notice of the truck on the track and thereafter negligently to have run the engine against it. The fact that, in doing so, it was acting by and through its servants or agents is but the statement of a truism. Such negligence is in "case," and is distinguished from a willful or wanton injury charged to defendant, by its servants, etc., rather than the defendant's servants, agents, etc., when a willful or wanton injury is charged to defendant, it is in trespass. City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389.

The suit is for damages to plaintiff's truck, alleged to have "stalled" across defendant's track at a private road crossing. Plaintiff testified that when he discovered he could not get the truck off the track, and hearing a train coming, he ran up the track for a distance of about one hundred and twelve steps or yards, and saw the engineer, as the train rounded a curve to its right, looking at him as he flagged with his hat and coat; that when the engineer first saw him, the engine was three hundred and twenty-five yards from him; that it was between sundown and dark, and the engineer could clearly see him for that distance without anything to obstruct the view; that he stepped those distances shortly before the trial, when there were several others present, including Levi Powers and John Powers.

Complaint is made by appellant that the court permitted Levi and John Powers to testify that on that occasion a demonstration was made by members of the party as a result of which it was disclosed that when a man stands where plaintiff testified he was standing in giving signals to the engineer, and one standing on the rail, under the engineer's seat on that engine, in the curve and becomes visible from around the curve to the one standing in plaintiff's position, the distance between them is three hundred and twenty-four or three hundred and thirty steps. The question is whether there was error in such ruling. Plaintiff had testified that it was not dark, and in effect that it was clear daylight though after sundown. There was conflict as to whether the headlight was burning. The evidence showed that the curve was in a cut so that the position of the engineer on the engine was such as to make him visible ordinarily a greater distance than was the man on the ground; also, that since the occurrence some of the bank in view had been removed; it not appearing exactly how much. This evidence was in line with that which had been given by plaintiff and was material upon the question of the distance from the engineer to where the truck was...