Central of Georgia Ry. Co. v. Chambers

• Decision Date: 17 June 1915
• Docket Number: 551
• Citation: 69 So. 518,194 Ala. 152
• Parties: CENTRAL OF GEORGIA RY. CO. v. CHAMBERS.
• Court: Alabama Supreme Court

69 So. 518

194 Ala. 152

CENTRAL OF GEORGIA RY. CO. v. CHAMBERS.

No. 551

Supreme Court of Alabama

June 17, 1915

Rehearing Denied July 2, 1915

Appeal from Circuit Court, Russell County; M. Sollie, Judge.

Action by Canty Chambers against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 183 Ala. 155, 62 So. 724.

The oral charge of the court, to which exception was reserved, is as follows:

If you believe from the evidence that the fireman was intrusted with the duty of giving the moving signal to the engineer, then if the train was permitted to stand across the public road crossing for more than a reasonable time, then after it had done so, it became the duty of the fireman before giving the moving signal to look out for pedestrians passing along the road at the crossing; and if you believe from the evidence that he did look out at and toward the crossing just before and at the time he gave the moving signal, it is for you, gentlemen, to determine from all the evidence whether or not, if he kept the lookout, he did see the plaintiff.

G.L Comer, of Eufaula, for appellant.

Glenn &amp De Graffenreid, of Seale, and S.B. Hatcher, of Columbus, Ga for appellee.

MAYFIELD J.

Appellee, plaintiff below, lost his little toe and a part of the next to it while attempting to cross over the bumpers of two connecting freight cars that were blocking a public road crossing in the town of Hatchechubbee, Ala.; and he sued the defendant railway company to recover his damages suffered in consequence of such injury. The action resulted in a verdict for $10,000, which amount, on the defendant's application for a new trial, was reduced by the trial court to $7,500, and judgment was rendered for the reduced amount. From the judgment the defendant prosecutes this appeal, and here assigns 100 errors on the part of the trial court, and in brief of counsel insists upon all. It would be almost an interminable task to attempt to write to each of these assignments, and would unduly extend the opinion. We shall therefore have to group those assignments which go practically to the same questions, and merely treat each group.

The first assignment of error goes to the overruling of the demurrer of the appellant to the several counts of the complaint. The questions pertinent were fully discussed and were decided on the former appeal in this case (183 Ala. 155, 62 So. 724); and the trial court, on this trial, followed the decisions of this court on the former appeal, for the reasons assigned on the former appeal. There was no error in overruling the defendant's demurrer to any count of the complaint.

On this trial the court treated each of the original counts as stating a cause of action as for simple negligence only, which was decided on the former appeal, but held that the additional count 10 stated a cause of action as for wanton or intentional injury; and as to these rulings we now find no error.

The next seven assignments of error go to rulings sustaining the demurrer to special pleas. There was certainly no error in sustaining the demurrer to the pleas in so far as they attempted to set up contributory negligence as a defense to count 10, which declared as for wanton, willful, or intentional injury. In so far as the pleas numbered 5, 6, and 7 attempted to answer the counts for simple negligence, if there was error in sustaining the demurrer thereto (which we do not decide), it is made to appear from this record that no possible injury was done, or could have been done, the defendant (appellant here), for the reason that the demurrer was overruled as to pleas 2, 3, and 4, as amended, which pleas set up the identical defense attempted to be set up in each of the pleas numbered 5, 6, and 7. All the evidence was admissible under pleas 3, 4, and 5, which would have been admissible under any one of the pleas 5, 6, or 7, and if the plaintiff could not prove either one of the pleas 2, 3, or 4, then he could not have proved either 5, 6, or 7, as they each set up the same facts, only in varying language and phraseology. The legal effect of each of the pleas was the same; that is, that the plaintiff, though under 14 years of age, possessed such maturity and discretion beyond his years as enabled him to understand and appreciate the danger of his attempt to cross over the bumpers of the cars, and that he was therefore guilty of contributory negligence which proximately contributed to the injury complained of. The material facts set up in each of the six pleas as last amended, and as each was when the rulings herein complained of were made, were certainly in legal effect the same. Each plea contained matter not contained in the others, but this different matter was merely evidentiary of the material facts set up and relied on in each as a defense.

The next 66 assignments of error--those from 9 to 74, inclusive--relate to the rulings of the trial court in permitting certain questions to be propounded to witnesses and allowing the same to be answered. All those assignments insisted upon involve but one question, and that is: Was it competent and admissible for the plaintiff on this trial to prove a custom or usage, on the part of the servants and agents of the defendant, to block the public crossing in question, as it was blocked on the occasion of this injury? We think such evidence was clearly admissible and competent on this trial. Such a custom was expressly averred in the complaint, and hence evidence to prove or disprove the averment was proper; and it was certainly not reversible error to allow it, under the issues made by the pleadings. The custom of pedestrians to go over or under the trains while they were so blocking the crossing in question, in connection with the other evidence that this custom was known, or ought to have been known, to the defendant's agents and servants in charge or control of the train of cars in question, was for the same reason admissible.

There was no error in the trial court's charging the jury that, if the defendant blocked the public crossing for an unreasonable length of time, it thereby became itself a trespasser. It was so held on the former appeal of this case.

After a careful reading of all the evidence shown by this record--which recites that it contains all the evidence--and after argument, oral and by brief, of able counsel for the appellant and the appellee, we have reached the conclusion that the trial court erred, to the prejudice of the defendant, in the oral charge, as to the question of wanton or willful injury as alleged in the tenth count. We are unable to find any evidence in this record which, if believed by the jury, would authorize them to find that the material allegation of count 10 was proven. The allegation to which

we refer is to the effect that the agents or...