Central of Georgia Ry. Co. v. Chambers

• Decision Date: 11 May 1916
• Docket Number: 5 Div. 615
• Citation: Central of Georgia Ry. Co. v. Chambers, 197 Ala. 93, 72 So. 351 (Ala. 1916)
• Parties: CENTRAL OF GEORGIA RY. CO. v. CHAMBERS.
• Court: Alabama Supreme Court

72 So. 351

197 Ala. 93

CENTRAL OF GEORGIA RY. CO. v. CHAMBERS.

5 Div. 615

Supreme Court of Alabama

May 11, 1916

Rehearing Denied June 30, 1916

Appeal from Circuit Court, Russell County; N.D. Denson, Special Judge.

Action by Canty Chambers, pro ami, against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

G.L Comer, of Eufaula, for appellant.

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

GARDNER J.

This is the third appeal in this cause. Cen.Ga.Ry. Co. v Chambers, 183 Ala. 155, 62 So. 724; Id., 69 So. 518. Plaintiff received his injuries while attempting to cross over the bumpers of two connecting freight cars which were blocking the public road crossing in the town of Hatchechubbee, and said crossing, according to the insistence of plaintiff, was blocked by the railway company an unreasonable length of time. We forego a further statement of the case, as the same is sufficiently set forth on the former appeals. Upon the previous trials the plaintiff recovered judgments, and appellant here secured a reversal on each appeal. The costs were accordingly taxed against the appellee, J.W. Chambers, as the next friend of Canty Chambers, a minor. On the last trial motion was made by defendant that further proceedings in the case be stayed until said J.W. Chambers pay the costs of the former appeal, for collection of which execution had issued. The trial court denied the motion, and this is the first question presented by the assignment of errors. The precise question here presented has been decided by this court adversely to appellant's contention. Ex parte Matthews, 145 Ala. 505, 40 So. 78. There was therefore no error in this action of the court.

The cause proceeded to trial on two counts. Count A rested for recovery upon simple negligence. That the evidence was entirely sufficient for submission to the jury of the issues presented under this count is, under the former decisions in this cause, too clear for discussion, and the affirmative charge requested by defendant was therefore properly refused. So, likewise, the question of the age of the boy, whether under or over 14 years (a matter, under the plea of contributory negligence, material to count A), was in conflict, and was properly a jury question.

The other count of the complaint, designated as count 10, and declared sufficient in its averments on the last appeal (69 So. 518), sought recovery as for a willful or wanton injury. The trial court submitted also the issues under this count for the determination of the jury, being persuaded to that action, no doubt, by some portions of the conductor's evidence tending to show that he had actual knowledge of the plaintiff's dangerous position, and, without taking any precautionary measures to prevent injury to him, communicated the signal for the movement of the train.

The court in its oral charge correctly and fully stated the law applicable to each count, instructing the jury that they had a right to specify in the verdict upon which count they rested their verdict, in the event they found the issue in favor of the plaintiff. The jury returned a verdict for plaintiff, awarding the sum of $5,000 damages under Count A of the complaint, specifying in the verdict said count, which was, as previously stated, for simple negligence.

A few of the refused charges referred to count 10, but as the verdict of the jury clearly discloses that a recovery on that count was denied to plaintiff by the jury, said count and any assignments of error relating thereto may be eliminated from consideration, for if any error were committed, it would be without injury to the appellant. We do not mean to indicate that there was error in any of these rulings--indeed we are inclined rather to the contrary view--but for the reason above stated the consideration of these assignments is unnecessary.

The last assignment of error complains of the excessiveness of the verdict, and counsel for appellant insist that the amount thereof indicates that the jury must have been influenced by passion or prejudice. The report of the case on the last appeal discloses that a verdict for $10,000 had been recovered, which sum...