Central of Georgia Ry. Co. v. McNab

• Decision Date: 23 January 1907
• Parties: CENTRAL OF GEORGIA RY. CO. v. MCNAB.
• Court: Alabama Supreme Court

43 So. 222

150 Ala. 332

CENTRAL OF GEORGIA RY. CO. v. MCNAB.

Supreme Court of Alabama

January 23, 1907

Rehearing Denied March 2, 1907.

Appeal from Circuit Court, Barbour County; A. A. Evans, Judge.

Action by Jesse McNab, suing by his next friend, Alf McNab, against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The appellee sued appellant for personal injuries received from being thrown from appellant's train. The pleadings may be gathered from what is said of them in the opinion. This is also true as regards most of the material evidence in the case. Motion was made to strike certain parts of the complaint in regard to the expenditure by plaintiff of large sums of money for medicine and medical attention, and for loss of time, all of which were overruled. During the examination of Belle Cobb, plaintiff asked the following question: "State how you got off of said train." This was objected to, but the objection was overruled. She answered that when she got to the rear platform of the coach for colored passengers, next to the coach which was used for white passengers, said platform was very much crowded with passengers who were getting on and off said cars at said station, and that while she was trying to get off the porter of the train helped and lifted her off, and as he was doing so the train was moving off. The defendant objected to the answer, and the court overruled the objection. Grant was asked by the plaintiff the following question: "State what you said to Dr. Long, and what Dr. Long said to you after he got off said train." Defendant objected to this question, and, the objection being overruled, witness answered: "I told Dr. Long that a telephone message had come to him from Batesville from some one who wanted him to come on down to Batesville on the train to attend to a sick person. Dr. Long requested me to send his buggy through the country to Batesville, so that he could return through the country, and that he would go on to Batesville on the train. The defendant objected to this answer. The plaintiff then asked him the following question: "State how Dr. Long got on said train." This was overruled, and the witness proceeded to detail the manner in which Dr. Long got on the train, which was also objected to. The plaintiff then asked said witness the following question: "State the condition of said platform, where Dr. Long got on said train as to passengers being on the same." This was objected to, and the objection overruled, and witness answered "The two platforms where Dr. Long got on, between the white and colored coaches, was very much crowded with passengers; some appearing to try to get off said train, and some appearing to try and get on said train." The other evidence sufficiently appears in the opinion.

In his oral charge the court said: "If the jury believe from the evidence that Jesse McNab received injuries on account of the negligence of the defendant, as is alleged in the complaint, and that plaintiff is entitled to recover, then in assessing the damages to be allowed or recovered, the jury can assess such reasonable amount for medical attention rendered to said Jesse McNab as they may think right and proper under the evidence, but not to exceed $100. (2) If the jury believe from the evidence that Jesse McNab received injuries on account of the negligence of the defendant, as is alleged in the complaint, and that plaintiff is entitled to recover in this action, then the jury, in assessing the damages, can allow such reasonable amount as was expended for medicine for said Jesse McNab, and as may be shown from the evidence, but not to exceed the sum of $10. (3) The court charges the jury that, if they believe from the evidence that Jesse McNab was 16 years of age and in good health at the time he received the injury as alleged in the complaint, then the expectancy of life of said Jesse McNab was 44 years. (4) If the jury believe from the evidence that Jesse McNab received injuries on account of the negligence of the defendants, as is alleged in the complaint, and that he is entitled to recover in this case, and that by reason of said injuries the capacity or ability of said Jesse McNab to earn wages has been permanently diminished or decreased, then, in estimating the damages which you may believe from the evidence he is entitled to recover, you may consider how much his capacity or ability to earn wages has been decreased, and allow such sum therefor for the term of his expectancy of life as to you may seem right and proper under the evidence. (5) If the jury believe from the evidence that, when the train left Comer Station, Jesse McNab was in a dangerous position on said train, and that the employés in charge of said train knew, or by the exercise of due diligence could have known, of his dangerous position on the train, and that on account of his being in such dangerous position he received the injuries as are alleged in the complaint, and that said injuries could have been avoided by the exercise of due diligence on the part of the employés in charge of said train, if they knew or by the exercise of due diligence could have known of the dangerous position of said Jesse McNab on said train, then the plaintiff would be entitled to recover."

The defendant requested a number of written charges, among them the general affirmative charge, which was refused by the court. There was a verdict and judgment for plaintiff for $1,500.

G. L. Comer, for appellant.

W. C. Swanson, R. J. Lowe, and Clayton & Clayton, for appellee.

DENSON J.

This action was commenced by Jesse McNab, suing by his next friend, Alf McNab, against the Central of Georgia Railway Company, a corporation, to recover damages on account of personal injuries alleged to have been suffered by the plaintiff while a passenger on one of defendant's trains and through the negligence of the defendant. Plaintiff recovered a judgment against the defendant in the circuit court, from which judgment the defendant has appealed. Pending the appeal the next friend died, and the cause has been revived in this court in the name of G. S. McDowell, Jr., as next friend. This is the proper practice in such state of the case. 14 Ency. of Pl. & Pr. 1002 (4).

In the complaint special damages are claimed for loss of time and for money expended for medicines and physicians' services. If it should be conceded that such damages are not recoverable by a minor, yet there is no reversible error in the ruling of the court overruling defendant's motion to strike such claim from the complaint, as the defendant had the right to protect itself against the recovery of such damages by objections to evidence and by special charges. Vandiver & Co. v. Waller, 143 Ala. 411, 39 So. 136. The defendant did object to the evidence tending to show such damages, and also requested the court to charge the jury in writing that such damages were not recoverable by the plaintiff. Therefore we must determine the contention of the defendant on its merits.

It was admitted on the trial that Alf McNab was the father of the plaintiff. That the father is entitled to the services of an infant son, and may recover for the loss of them occasioned by the wrongful or negligent act of another, as a general proposition, may be conceded. The right of recovery for such loss is founded, not on the parental relation, but on the technical relation of master and servant. Durden v Barnett & Harris, 7 Ala. 169; Lyon v. Bolling, 14 Ala. 753, 48 Am. Dec. 122. But the father may emancipate the minor son, and thus relinquish all claim to his services or the earnings of his industry; and emancipation may be shown, as may any other fact, either directly or by circumstances from which the jury would be authorized to infer the fact of emancipation. And the law will permit an emancipated minor to recover for loss of time occasioned by a personal injury caused by the negligence of a defendant. Lyon v. Bolling, supra; Forbes v. Loftin, 50 Ala. 396; Benziger v. Miller, 50 Ala. 206. It cannot be said that the...