Callaway v. Griffin

• Decision Date: 15 June 1944
• Docket Number: 4 Div. 289.
• Citation: 245 Ala. 598,18 So.2d 547
• Parties: CALLAWAY v. GRIFFIN.
• Court: Alabama Supreme Court

18 So.2d 547

245 Ala. 598

CALLAWAY v. GRIFFIN.

4 Div. 289.

Supreme Court of Alabama

June 15, 1944

A. M. McDowell and McDowell & McDowell, all of Eufaula, for appellant.

Archie I. Grubb, of Eufaula, and Lee J. Clayton Sr., of Clayton, for appellee.

THOMAS, Justice.

The suit was under the homicide statute. There were three counts as framed charging subsequent negligence, and a willful and wanton count. When the evidence was in defendant requested the general affirmative charge as to each count, which was refused. This ruling of the court is assigned as error.

Each of the four counts of the complaint upon which defendant's alleged liability is predicated proceed upon the theory and aver that the servants, agents or employees of the defendant committed the wrongful act complained of after the danger to plaintiff's intestate was discovered, knowing the situation of peril of the deceased, or after becoming aware of deceased's peril, failed to use due caution to prevent injury, or that they wantonly or willfully ran over or upon him, which caused his death. The first three counts of the complaint charge subsequent negligence, while the fourth charges wanton and willful misconduct.

The allegations attempting to show liability of the defendant for subsequent negligence, place upon the plaintiff the burden of proving that the employees of the defendant operating the train which caused decedent's death actually knew that the deceased was present upon the track in peril and within such time as to render the failure to stop the train before injuring or causing his death as an act of negligence. To maintain the charge of wanton or willful negligence, or intentional wrong as charged in the complaint, the burden of proof is upon the plaintiff to show that the engineer operating defendant's train was at the time in fact acquainted with the conditions out of which the duty arose to avoid intestate's peril. As to this count, no mere evidential presumption can equal in this respect that conscious knowledge which is an essential element of wanton or intentional wrong. It is averred that:

"* * * plaintiff's intestate, Jeff Griffin, was within the corporate limits of the City of Eufaula, Alabama, in a place of danger upon or near to the track where defendant was operating said locomotive and train of cars, * * * that after the danger to her intestate was discovered by defendant's engineer or other person who was then and there in charge or control of said locomotive, as aforesaid while acting within the line and scope of his employment as such engineer, or other servant or agent, wrongfully wantonly, willfully, or intentionally ran said locomotive and cars over, upon or against plaintiff's intestate at the time and place aforesaid, and thereby killed him; * * *." [Italics supplied.]

We should observe that the burden of proof assumed by the pleader adverted to and embraced in the evidence shows plaintiff's intestate was without dispute a trespasser upon defendant's railway track. He was seen in the late afternoon preceding his death under the influence of liquor and at the time having a quart bottle about half full in his possession; that the last time he was seen alive was by his brother on the same afternoon between five and five-thirty o'clock on defendant's railroad track back of the city cemetery. His crushed and mangled body was found prone between the rails of the track at an isolated spot between 8 and 9 o'clock, Central War time, on the night of July 24th, 1942, at a point between the trestle which spans Chewalla Creek and the "cemetery brick wall," within the city limits. There were no eye witnesses to the accident which caused his death.

Appellant insists that defendant failed to meet the burden of proof and hence the several general affirmative charges were requested as to each count. Before considering the rulings of the trial court in refusing these charges, we will advert to the rulings on evidence to which exceptions were reserved.

It is first insisted by the appellant that the lower court erred in admitting in evidence the Code of the City of Eufaula, particularly Section 527 thereof, the ordinance prohibiting the rate of speed of trains in excess of eight miles per hour within the city limits. That such was error is manifest when it is seen that the complaint, as well as the testimony presented by the plaintiff, attempts to predicate the defendant's liability upon subsequent negligence in that the employees of defendant failed to stop the train after becoming aware of deceased's peril. Although in an action for simple negligence the violation of a city ordinance is relevant; obviously, in a case of subsequent negligence, involving circumstances such as this case on appeal, such violation could not be the proximate cause of the injury and death of plaintiff's intestate, nor in any other way constitute material or competent evidence.

Neither count charges negligence in the operation of the train, at the time and place, at an unlawful rate of speed, but charges subsequent negligence, and willful and wanton misconduct after discovery of peril. Therefore, even though the ordinance has the force of law, the violation thereof is classified as simple negligence and not admissible in evidence under the allegations of the complaint. Roberts v. L. & N. Ry. Co., 237 Ala. 267, 186 So. 457. That is, if the accident occurred within the corporate limits of the City of Eufaula, but at an isolated place, the violation of an ordinance regulating speed of trains would not show subsequent negligence, but initial or antecedent negligence. Central of Georgia Ry. Co. v. Blackmon, 169 Ala. 304, 53 So. 805.

It has been declared by this court to operate a train within the corporate limits of a city at a speed prohibited by its ordinance, without more, will not constitute a wanton or intentional wrong, rendering a defendant liable for the death of a trespasser. Martin v. Union Springs & N. Ry. Co., 163 Ala. 215, 50 So. 897; Helms v. Central of Ga. Ry. Co., 188 Ala. 393, 66 So. 470; Roberts v. L. & N. Ry. Co., 237 Ala. 267, 186 So. 457. Otherwise stated, the mere violation of a statutory duty, amounting to simple negligence only, will not constitute willful and wanton misconduct unless there be actual knowledge, "or that which is esteemed in law as the equivalent of actual knowledge, of the peril of the person injured, coupled with the conscious failure to act, to the end of averting the injury." Smith v. Central of Georgia Ry. Co., 165 Ala. 407, 51 So. 792, 793. The rate of speed alone does not constitute willful or wanton negligence. Northern Ala. R. Co. v. McGough, 209 Ala. 435, 96 So. 569. There must exist the other necessary elements of such culpable act or the failure to act, in such circumstances of time, place and knowledge on the part of defendant of the peril that imposed the duty to act or refrain from acting to cause the injury.

In Martin v. Union Springs & N. Ry. Co., supra, this court held that the mere violation of a city ordinance would not constitute such conduct as to impose liability for the death of a trespasser. And in Helms v. Central of Ga. Ry. Co., 188 Ala. 393, 66 So. 470, it is declared that where recovery was sought on the theory of discovered peril alone, the running of a train at a speed greater than allowed by city ordinance, furnished no basis for liability even if running at an unusual rate of speed. See also Roberts v. Louisville & Nashville R. Co., 237 Ala. 267, 186 So. 457; Weatherly v. Nashville C. & St. L. Ry. Co., 166 Ala. 575, 51 So. 959.

The testimony of plaintiff's witnesses and that of Griffin, Morrell and Walker was to the effect that numerous people for the two years next before the death of plaintiff's intestate had used the railroad track, where the injury occurred, as a travel-way for pedestrians from Hoboken to Eufaula, but such testimony does not raise a conflict that would prevent the giving of the affirmative instruction requested. However, the engineer in charge and the superintendent of tracks testified, without dispute, that a constant lookout was maintained at the time and place and that no human being was observed on the track as a pedestrian or otherwise.

In Central of Georgia Ry. Co. v. Blackmon, 169 Ala. 304, 53 So. 805, 807, the rule is laid down by this court that while plaintiff's intestate's negligence in being on the track would defeat a recovery for initial or antecedent negligence, yet he could recover, "if defendant's servants, in charge of the train, became aware of the intestate's peril in time to avoid running over him by the proper use of preventative means at their command, and negligently failed to resort to such means, to conserve his safety, provided the intestate himself was free from negligence after becoming conscious of his danger." It is without dispute that plaintiff's intestate at the time of his injury was drinking or intoxicated and lying or sitting on the track, and he was not using the track as a passage way. As such trespasser he did not come within the rule of cases defining the duty of a railroad to one using its track as a recognized travel-way that might affect liability in the premises. Southern Ry. Co. v. Stewart, 179 Ala. 304, 311, 60 So. 927, has been adhered to in our later cases of Clark v. Birmingham Electric Co., 236 Ala. 108, 109, 181 So. 294; Louisville & Nashville R. Co. v. Sullivan, 244 Ala. 485, 13 So.2d 877. See also Birmingham Ry. L. & P. Co. v. Jones, 153 Ala. 157, 45 So. 177 (child on the track); Smith v. Central of Georgia Ry. Co., 165 Ala. 407, 51 So. 792 (where engineer thought object was a buzzard); Louisville & Nashville R. R. Co. v. Rayburn, 198 Ala. 191, 73 So. 461 (the drunk man was recognized).

The evidence...