Central of Georgia Ry. Co. v. Corbitt

• Decision Date: 22 November 1928
• Docket Number: 4 Div. 380
• Citation: 218 Ala. 410,118 So. 755
• Parties: CENTRAL OF GEORGIA RY. CO. v. CORBITT.
• Court: Alabama Supreme Court

118 So. 755

218 Ala. 410

CENTRAL OF GEORGIA RY. CO. v. CORBITT.

4 Div. 380

Supreme Court of Alabama

November 22, 1928

Appeal from Circuit Court, Russell County; J.S. Williams, Judge.

Action for wrongful death by A.M. Corbitt, as administrator of the estate of Willie Corbitt, deceased, against the Central of Georgia Railway Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

G.L Comer & Son, of Eufaula, for appellant.

Frank M. De Graffenried, of Seale, for appellee.

BROWN J.

This an action under the Homicide Act, Code § 5696, by the administrator of Willie Corbitt, deceased, against the appellant, for wrongfully causing the death of plaintiff's intestate. Before the case was submitted to the jury, the complaint was amended by withdrawing counts 1 2, and 3, and the case was submitted to the jury under counts 4 and 5.

Count 4 ascribes the death of plaintiff's intestate to the willful and intentional wrong of the servants of the defendant engaged in operating a freight train on the defendant's railroad, while count 5 ascribes his death to the negligence of such servants after the discovery of his peril on the track. The verdict of the jury was returned under the fourth count operating as an acquittal of the defendant of negligence as charged under the fifth count, a result not inconsistent with correct application of the principles upon which such liability may be sustained. McNeil v. Munson S.S. Lines, 184 Ala. 420, 63 So. 992; Sington v. B'ham Ry. L. & P. Co., 200 Ala. 282, 76 So. 48.

The defendant requested the affirmative charge as to count 4, which was refused, and the conclusion which we have reached is that this was error for which the judgment must be reversed, rendering other questions unimportant as they may not arise on another trial.

While as to liability and the defenses which may be interposed, there is no difference between wanton injury and willful or intentional injury, there is a well-recognized distinction in the elements of these two classes of wrongs. To constitute willful or intentional injury there must be a knowledge of the danger accompanied with a design or purpose to inflict injury, whether the act be one of commission or omission, while in wantonness this design or purpose may be absent, and the act done or omitted with knowledge of the probable consequence, and with reckless disregard of such consequence. Alabama G.S.R.R. Co. v. Moorer, 116 Ala. 642, 22 So. 900; Birmingham R. & E. Co. v. Bowers, 110 Ala. 328, 20 So. 345; Louisville & N.R.R. Co. v. Anchors, Adm'r, 114 Ala. 492, 22 So. 279, 62 Am.St.Rep. 116.

And as for the element of knowledge of peril on the part of the person charged with the wrong, there is no distinction in principle between subsequent negligence and willful or intentional wrong. Central of Ga. Ry. Co. v. Ellison, 199 Ala. 571, 75 So. 159; Glass v. Memphis & Charleston R.R. Co., 94 Ala. 588, 10 So. 215; Nave v. A.G.S.R.R. Co., 96 Ala. 267, 11 So. 391.

We are here confined, by the averments of the fourth count of the complaint, to a consideration of whether the evidence in this cause affords an inference that the defendant's engineer acted or omitted to act with the purpose, design, or intention of inflicting injury on plaintiff's intestate, and to this end it is not enough that he inadvertently failed to do something that would have averted the injury, or, by the exercise of greater diligence, could have sooner discovered that the object which he saw on the track was a person.

There is no question as to the equipment of the train with proper facilities for lighting the track ahead of the train, for giving warning of its approach, or for checking its speed and stopping it. The evidence shows that the catastrophe occurred at 10 o'clock at night in a country district where the track was straight and the view unobstructed for...