Central of Georgia Ry. Co. v. Motherwell, 6 Div. 260.

• Decision Date: 05 October 1933
• Docket Number: 6 Div. 260.
• Citation: 149 So. 820,227 Ala. 300
• Parties: CENTRAL OF GEORGIA RY. CO. v. MOTHERWELL.
• Court: Alabama Supreme Court

149 So. 820

227 Ala. 300

CENTRAL OF GEORGIA RY. CO. v. MOTHERWELL.

6 Div. 260.

Supreme Court of Alabama

October 5, 1933

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for personal injury by T. M. Motherwell against the Central of Georgia Railway Company. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

W. H Sadler, Jr., of Birmingham, for appellant.

John W Altman and Fred G. Koenig, both of Birmingham, for appellee.

GARDNER Justice.

Upon former trial (Central of Georgia Ry. Co. v Motherwell, 224 Ala. 504, 140 So. 547), count 3 (upon which the cause was submitted to the jury) rested for recovery on the theory of subsequent negligence, and placed the location of the accident "at or near the intersection of Twenty-Third Avenue with Twenty-Seventh Street, North." Plaintiff insisted by his evidence that at the time of the injury he was walking and about to cross the track at this intersection, while defendant's proof tended to show that he was in fact lying face down and with his foot across the rail, and was some 45 feet east of the intersection. And under that tendency of the evidence defendant insisted all possible was done to avert the accident after his perilous position was discovered.

It was the theory of plaintiff's counsel, however, which appears to have been accepted by the trial court on the former hearing, that plaintiff was entitled to recover by force of the doctrine of subsequent negligence whether plaintiff's version or that of defendant as to the facts be accepted. But on appeal it was held that the averment of location in count 3 "at or near the intersection," in connection with the averment that plaintiff was in the act of crossing the track, did not justify a recovery based upon proof that plaintiff was lying face downward on the track at a location 45 feet east of such intersection, and this was one ground for condemnation of charge 4, given for plaintiff.

Upon the second trial, the complaint was amended by adding count B, wherein recovery was sought on the theory of subsequent negligence based upon defendant's version of the facts, and count A, which was substantially the same as former count 3.

Defendant seeks to invoke the principle of estoppel as to count B, based upon the theory that plaintiff has successfully assumed a certain position and may not, because his interest has changed, assume a contrary position, citing, among other authorities, Davis v. Wakelee, 156 U.S. 680, 15 S.Ct. 555, 39 L.Ed. 578; Ohio & M. R. Co. v. McCarthy, 96 U.S. 258, 24 L.Ed. 693; Maryland Casualty Co. v. Dupree, 223 Ala. 420, 136 So. 811; Harrison v. Harrison, 200 Ala. 379, 76 So. 295; McQuagge Bros., Inc., v. Thrower, 214 Ala. 582, 108 So. 450; 21 Corpus Juris 1226. The principle contended for is well recognized, but we think it lacks application here.

The evidence on both trials is substantially the same, and plaintiff insists on the last trial, as he did on the first, that the accident occurred at the intersection as he was about to cross. He has not changed his position in the case, but adheres thereto. But under our liberal rule of amendment of pleading to meet the proof he has only added count B to meet the evidence of the defendant, and to submit his right of recovery even upon defendant's version of the facts. Such procedure lacks the essential elements of estoppel, and we find no error in the rulings upon which it was sought to be invoked.

Nor was there error in the refusal of the affirmative charge as to either count A or B. As to count A the opinion on former appeal suffices for an answer, and upon due consideration we are unwilling to depart therefrom.

No necessity here arises for any detailed...