Birmingham Ry., Light & Power Co. v. Drennen

• Decision Date: 03 June 1911
• Citation: 57 So. 876,175 Ala. 338
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. DRENNEN.
• Court: Alabama Supreme Court

57 So. 876

175 Ala. 338

BIRMINGHAM RY., LIGHT & POWER CO. v. DRENNEN.

Supreme Court of Alabama

June 3, 1911

Rehearing Denied Feb. 17, 1912.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Kate B. Drennen, as administratrix, against the Birmingham Railway, Light & Power Company for damages for death of her intestate, alleged to have been caused by a collision with one of defendant's cars. Judgment for plaintiff in the sum of $7,000, and defendant appeals. Reversed and remanded.

Mayfield J., dissenting in part.

The facts sufficiently appear from the opinion of the court. The oral charge of the court, excepted to, is as follows "Willful injury exists where there is a purpose on the part of the party complained of to inflict the injury. Wanton injury does not necessarily include any design or purpose to injure any one; but if the person in charge of the car, which is being operated and run along a public street, knows that to run the car without stopping is liable to injure a person in front of the car, and if he is conscious of his conduct at the time, continues to run the car with a reckless indifference to consequences, without making proper efforts to stop it, or without using the means at hand to stop it and prevent the collision, that would constitute wantonness if the act or omission to act was the proximate cause of the injury. You see, in willful injury there must be design or purpose; whereas, to constitute wanton injury, there need not be a design to injure, but a reckless indifference to consequences, knowing at the time that the doing of certain acts, or failure to do certain acts, would result in personal injury or death, and he consciously does the act, or consciously fails to act, and such act, or failure to act, results in injury or death, that would constitute wantonness, if that act or failure to act was the proximate cause of the injury."

Charge 7 is as follows, and was given for the plaintiff: "Even if Mr. Drennen pulled his horse on the track, and was guilty of contributory negligence in that regard, yet if the motorman saw the peril in time to avoid the danger by the exercise of due care, and negligently failed after discovering the peril to do what he could in the exercise of due care in the management or control of the car, and that such negligent failure, if there was such, proximately caused the death, then the previous negligence, if any, of Drennen in getting into danger, would be no defense to such subsequent negligence of the motorman, even if the motorman was not guilty of any wantonness, nor of any intentional wrong."

Tillman, Bradley & Morrow, for appellant.

Bowman, Harsh & Beddow, for appellee.

MAYFIELD J.

Appellee, as administratrix, sued appellant street car company, under the homicide statute, to recover damages for the wrongful death of her intestate, who was her husband.

The complaint contained two counts; one charging simple negligence, and the other wantonness. The gravamen of the complaint is that the motorman in charge of the defendant's car, either negligently, as charged in the first count, or wantonly or intentionally, as charged in the second, caused the car to run against a buggy in which the intestate was riding, thus throwing him from the buggy, or causng him to jump therefrom, and thereby killing him.

The deceased, on the day of the fatal injury, was driving in a buggy on the north side of Avenue F., in the city of Birmingham, going in an easterly direction towards Avondale, while the defendant's car was proceeding in the opposite direction along the same avenue, and when at a point between Twenty-Second and Twenty-Third streets the horse of the deceased became frightened and unruly, and while deceased was attempting to control the animal the buggy was run into by the street car, or ran against the car.

The evidence is conflicting as to the exact manner of the collision; that is to say, whether the car was standing still at the time, and was struck by the buggy, or whether the car ran into the buggy. Some of the evidence shows that the car moved about six inches after the collision, and other evidence that it moved three or four feet, and still other that it moved six or eight feet. There was testimony tending to show that the deceased pulled the horse across the track in front of the car, or that the horse, becoming unmanageable, went across the track in front of the car, while deceased was trying to prevent it from so crossing. The deceased either was thrown, or jumped, from the buggy at the time of the collision, and it was from this fall that he received the injuries that caused his death.

The substance and effect of the testimony of the first witness for plaintiff, a negro woman named Willie Brown, was that she witnessed the collision and accident; that just before and at the time of the accident the motorman in charge of the car was looking backward, and therefore could not and did not see the deceased nor know of his peril. For what purpose he was looking backward was not made to appear by her evidence; and it should be said that her testimony here is contradicted by all the other witnesses. Moreover, she puts the deceased on the side of the track opposite to that indicated in the testimony of other witnesses, and states that the deceased pulled the horse across the track to avoid meeting an automobile. None of the other witnesses testify to seeing an automobile, or to the circumstances of the crossing of the track. She says that the car did not slow up, because the motorman was looking backward. She does not say how far the car moved, after striking the buggy; but her testimony tends to show that the deceased pulled the horse across the track in front of the car. Many of the witnesses say that the horse was shying or attempting to run, and that deceased was trying to keep it off the track at the time of the collision.

Another witness, Mrs. Connybear, testifies that she did not see the car strike the buggy; that when she first saw it the car was pushing the buggy toward Twenty-Fourth street, and went three or four feet. She does not attempt to show how close the car was to deceased when he went upon the track.

Another witness for the plaintiff, Mrs. Massey, testifies that she was in her house near the scene of the accident, and that she reached her door just in time to see the collision; that the car pushed the buggy about three feet.

Nellie Luna, another witness, testifies that the car had stopped when she first saw it, and that she did not see the collision.

Another witness for the plaintiff, Ed Shriver, testifies that he did not see the collision, but witnessed some of the circumstances; that the car was running at a moderate speed, he being in it, and that he did not see the buggy until the collision; that he did not feel any crash, but only the usual sensation of a stopping car.

The defendant's witness Erhart testifies that the car was standing still, and that the buggy collided with it. Another witness, Hunter, testifies that the horse was trying to cross the track; the car being within six feet of it. Another witness testifies that he saw the horse jump across, about six feet in front of the car, and that the buggy hit the end of the car just about the time it got on the track.

Another witness, Miller, testifies that the horse shied across the track, and that the car was stopped after it pushed the buggy about six inches, and that the horse was about 15 or 20 feet from the car.

Witness M. F. Oeser testifies that the crash and the stopping of the car occurred at the same time, and that deceased was about 10 yards in front of the car when he fell.

The testimony of the witness Parker, the motorman, is to the effect that he noticed the deceased coming up the avenue, but not on the track, and that as the horse got closer to the car it became frightened at something on the sidewalk, and attempted to cross the track, the deceased trying to prevent this; and that he (the motorman) attempted to slow up the car as soon as he saw that the horse was trying to cross the track; that the car was still when the buggy struck it, and that the left hind wheel was knocked off; that the horse was going very fast; that the car was stopped by the time the horse was within 15 or 20 feet of it; that he had time to stop the car, but not to back it.

We do not find any evidence in this record, standing alone, or connected with all the other evidence, which would justify the trial court in submitting the question of wanton negligence or willful injury under the second count, which ascribed the injury to the wantonness or willfulness of the motorman. While some of the evidence may tend to show simple negligence on the part of the motorman, we find none showing, or even tending to show, wanton negligence or willful injury, as has been defined by this court. The most that any of it shows or tends to show is that he was looking backward, and therefore failed to observe the danger to which the deceased was exposed, or to know and appreciate the danger of not stopping the car. There is nothing to show that his looking backward was wanton, or to justify any inference that it was with the intent to injure the deceased or any one else. The most that this or any other evidence shows is simple negligence, or failure to observe due care. Other evidence shows that he failed to sound the gong, or to give warning of the approach of the car; but this, at most, was simple negligence, and all the other evidence shows or tends to show that he did attempt, as best he could, to prevent the injury, after becoming aware of the danger and peril of the deceased.

It follows, therefore, that the court should have given the affirmative charge for the...