Birmingham Belt R. Co. v. Hendrix

• Decision Date: 28 October 1926
• Docket Number: 6 Div. 600
• Citation: 215 Ala. 285,110 So. 312
• Parties: BIRMINGHAM BELT R. CO. v. HENDRIX.
• Court: Alabama Supreme Court

110 So. 312

215 Ala. 285

BIRMINGHAM BELT R. CO. v. HENDRIX.

6 Div. 600

Supreme Court of Alabama

October 28, 1926

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by Jessie May Hendrix, as administratrix of the estate of George Hendrix, deceased, against the Birmingham Belt Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellant.

London Yancey & Browner and Frank Bainbridge, all of Birmingham, for appellee.

SAYRE J.

This case went to trial on amended counts 1 and 2 of the complaint. Demurrers to these counts, raising substantially the same questions in respect to each, were overruled, and these rulings of the court are assigned for error.

Count 1. This count, after showing that the death of plaintiff's intestate occurred in a collision between trains of defendant and the Southern Railway Company, at a crossing of the two roads, alleged:

"That the said defendants [at that time, the St. Louis & San Francisco Railroad Company was a party defendant, but was afterwards eliminated by amendment], by and through the negligence of their servant, agent, or employee in charge and control of said engine on said Birmingham Belt Railroad; namely, one Jim Byrd, who was then and there acting within the line and scope of his authority or employment as such servant, agent, or employee, negligently caused or allowed the said train containing the said car upon which plaintiff's intestate was riding, as aforesaid [as a switchman then and there in the service of defendant as the count elsewhere alleges], to undertake or attempt to go over or on or across said Thirty-Second street crossing, while said train on said Southern Railway Company's railroad was rapidly approaching for the purpose of going over and across said Thirty-Second street crossing, as defendant's said servant or agent in charge and control of said engine knew or by the exercise of due care should have known."

Two objections are taken against the count:

(1) That the count fails to allege that Byrd, the engineer, knew or was apprised of the likelihood of a collision between the two trains. There is no allegation that defendant's engineer violated or failed to observe the requirement of section 9953 of the Code (1923), which places upon engineers and conductors in charge of trains, in situations such as the count disclosed, the duty to come to a full stop within 100 feet of the crossing, and not to proceed until they know the way to be clear. As for any specific allegation of the count, there may have been strict compliance with this section of the Code. The question presented by the demurrer is whether the engineer was under duty to know the approach of the train on the Southern Railway. We feel no hesitation in saying that, in the situation alleged, and without respect to the requirement of the statute, defendant's engineer should have informed himself as to that. Common reason would have suggested that. Nor can the count be construed as having reference to a train on the Southern road approaching the crossing, but at such a great distance as to carry no suggestion of danger. In view of the allegation as to what did happen, the inference is not only reasonable, but necessary, that the approaching train was so near at hand as to portend disaster.

(2) It is said that the count fails to allege that the engineer, Byrd, knew that plaintiff's intestate was in a position of peril, in case of a collision. This objection may be answered by referring in a general way to those considerations stated above. Plaintiff's intestate, as the count shows, was a switchman on the train propelled by the engine under the control of Byrd, to whom the count attributes negligence. This, it may be assumed, the engineer knew. We think it must also be assumed, as the result of common knowledge, that the engineer knew, or must be charged with knowledge, that any place on a moving freight train is a place of danger, in case of a collision with another train. A dutiful engineer must keep such contingencies in mind as affecting the crew of which he is a part, and it was not necessary, in the statement of the cause of action disclosed by the count, to allege that defendant's engineer knew the precise position of intestate or should have anticipated the precise details of the accident which brought about his death. The cases cited by defendant in this connection, viz., Western Union v. Howington, 198 Ala. 311, 73 So. 550, Southern Rwy. v. Carter,

164 Ala. 103, 51 So. 147, and L. & N. v. Bouldin, 110 Ala. 185, 20 So. 325, may be easily discriminated by reference to the facts alleged or proved in those cases.

The more general argument against the count is that it alleges facts which do not necessarily imply negligence, and, having alleged facts not necessarily implying negligence, the count should be held insufficient. As we read the count, it alleges the situation out of which the accident causing the death of plaintiff's intestate arose, shows the duty of the engineer in the premises, and then alleges, in effect, that he negligently caused or allowed the collision which brought about the death of intestate. This was a substantial compliance with the rule of our cases and cannot be condemned as failing to furnish to defendant sufficient information as to the cause of action relied upon, or to provide the material for a plea of res adjudicata in the event such a plea became necessary. Thus the count fills the office of good pleading, reasonably adjudged, and was properly upheld against the demurrer. Demopolis Telephone Co. v. Hood, 212 Ala. 216, 102 So. 35, B.R.L. & P. Co. v. Wilcox, 181 Ala. 512, 61 So. 908, and B.R.L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, and the cases cited abundantly sustain this ruling.

Count 3. Much the same considerations suffice to answer the objections taken against the third count of the complaint. This count shows defendant's duty to conserve the safety of plaintiff's intestate and that one Flinn, a servant, agent, or employee of defendant, then and there acting within the line and scope of his employment, negligently caused or allowed the collision which resulted in the death of plaintiff's intestate. This, under our adjudications, was sufficient. There is no need to cite additional authority. When regard is had to the peculiar facts of the cases cited by defendant in this connection, it will be found that they hold nothing to the contrary of what has here been said. They are, indeed, in full accord with our present opinion.

There is no dispute that the case was properly tried as one governed by the federal Employers' Liability Act (U.S.Comp.St. §§ 8657-8665). The court, instructing the jury as to their duty in the matter of assessing damages, in the event plaintiff was entitled to recover, said, among other things:

"In arriving at what is the reasonable cash value of the present worth of money, you are to discount it at--ascertain the present worth--at a reasonable discount, such sum as you are to consider reasonably safe in arriving at the earning power of money."

To so much of this instruction as we have underscored, defendant reserved an exception in due form. One complaint of this instruction is that it is unintelligible. If that were true the judgment could not well be reversed on that account, for that would involve the novel, if not inconsistent, idea that an unintelligible instruction probably led the jury, in a case of this character, into error against the plaintiff. Nor should there be a reversal on this account since defendant has not complained specifically that the damages assessed were excessive, though it did and does insist that the court erred in refusing to instruct the jury that there could be no assessment of damages for mental pain or conscious physical suffering on the part of deceased between the times...