Chattahoochee Valley Ry. Co. v. Williams

• Decision Date: 05 June 1958
• Docket Number: 5 Div. 625
• Citation: 267 Ala. 464,103 So.2d 762
• Parties: CHATTAHOOCHEE VALLEY RAILWAY COMPANY v. J. Fletcher WILLIAMS.
• Court: Alabama Supreme Court

Page 762

103 So.2d 762

267 Ala. 464

CHATTAHOOCHEE VALLEY RAILWAY COMPANY v. J. Fletcher WILLIAMS.

5 Div. 625.

Supreme Court of Alabama.

June 5, 1958.

Denson & Denson and Yetta G. Samford, Jr., Opelika, and C. S. Moon, La Fayette, for appellant.

L. J. Tyner, Opelika, and R. C. Wallace, La Fayette, for appellee.

COLEMAN, Justice.

This is an appeal by defendant from an adverse verdict and judgment in a suit at law for personal injuries sustained by plaintiff as the result of the collision of a boxcar of defendant with plaintiff's automobile, which he was driving, at a public railroad crossing at Fairfax, in Chambers County. Defendant's motion for new trial was overruled.

The accident occurred after dark on a spur track which leads from the main line of defendant's railroad to the Fairfax Mill. It was raining.

Plaintiff testified that he approached the crossing, in his car, behind a taxicab which slowed down and forced plaintiff to stop his car before going on the tracks, that plaintiff did stop, looked to the left, saw some boxcars 'parked' on main track to his left, looked ahead and to the right, that he listened but heard no bell or whistle, that he started his car in low gear, that plaintiff's brother who was a passenger in plaintiff's car yelled 'Look out,' whereupon plaintiff looked up and saw the train or boxcar within three feet of his face, that the boxcar hit plaintiff's automobile and injured plaintiff. Plaintiff also testified that he did not see any flagman at the crossing at the time of the accident, that there were no lights on the boxcar, and that no warning signal of any sort was given, that plaintiff was familiar with the crossing and had been crossing it two or three times a day for eighteen years, that plaintiff's brother who was riding in the automobile with plaintiff had been drinking and that the brother had some liquor in the car. Plaintiff denied that he had been drinking that day and denied that he had been to the Blue Room on the afternoon of the accident.

Defendant's evidence tended to show that plaintiff did not stop at the crossing, that he drove at a rapid rate onto the crossing in the path of the cars and almost struck the flagman who was standing in the middle of the road waving a lantern, and that as soon as it appeared that plaintiff would not stop the flagman gave an emergency signal and stopped the train. There was additional testimony tending to support the conflicting contentions of both parties, which evidence presented for the jury the issues of negligence on part of defendant and contributory negligence on the part of the plaintiff.

Assignments of Error 1 and 2.

These assignments are to the effect that the trial court erred in refusing to give the affirmative charge and the affirmative charge with hypothesis, duly requested in writing by defendant to Count 2 of the complaint.

Defendant argues that Court 2 is in trespass; that proof of corporate participation was necessary before this court could be submitted to the jury; that there was no proof of corporate participation; and, therefore, defendant was entitled to have given the requested affirmative charges as to this count.

In Count 2 plaintiff alleges that '* * * the defendant ran a railway train of the defendant against the automobile in which plaintiff was riding as aforesaid, and as a proximate consequence thereof plaintiff was severely injured * * *.;' and that '* * * all of his said injuries and damages were caused as a proximate result of the negligence of the defendant * * *.'

In this argument, defendant has misconceived the nature of Count 2. That count does not require proof of corporate participation. We recently considered the necessity of proof of corporate participation to support a count charging a corporate defendant with wanton misconduct in Louisville & N. R. R. Co. v. Johns, Ala., 101 So.2d 265, and held such proof necessary to support the wanton count in that case. The opinion in that case noted, however:

"* * * But inasmich as an averment that the 'defendant' negligently did the wrongful act can be supported by proof that defendant's servants or agents did the act of negligence while acting within the line and scope of their employment by the defendant, Circuit Court Rule 34 has been held to apply where the complaint charged the negligent act to the defendant but the proof showed that the act of negligence was done by the defendant's servants or agents while acting within the line and scope of their employment. (Citations omitted.)" (101 So.2d 265, 278);

and for authority cited Morrison v. Clark, 196 Ala. 670, 72 So. 305, where this court said:

'Adverting to the first count, in which is the averment that the 'defendant negligently caused or allowed said automobile to run upon or against or into said vehicle on the occasion aforesaid,' in City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389, this court held that as to simple negligence, an averment that the 'defendant' did the wrongful act could be maintained by proof that defendant's servants or agents did the act of negligence, while acting within the line and scope of their employment by the defendant. 31 Cyc. 1626. Moreover, there was no objection to the evidence on the ground of a variance; therefore the court could not be put in error. Circuit court rule No. 34, 175 Ala. xxi.

'If, then, there was evidence to warrant the jury in drawing the inference that the wrongful act was committed by the defendant acting through servants or agents who, at the time, were in the discharge of the master's business, and were acting within the scope of the employment, then the affirmative charges requested by the defendant, as A and 1, were properly refused.' (196 Ala. 670, 674, 675, 72 So. 307)

In City Delivery Co. v. Henry, 139 Ala. 161, 166, 34 So. 390, it was said:

'* * * If it be granted that, construing the averments against the pleader, the intendement is that the running against and striking the plaintiff was directly caused by the negligent act of the defendant itself, and not that the collision was due to the negligent act of the defendant's servant, merely, still the injury, being a resultant of negligence, and not of intentional causation, would be indirect, wanting in the application of force, and consequential, within the doctrine which distinguishes case from trespass.'

In the case at bar, Count 2 is in case, not trespass, and proof of the negligence of defendant's servants while acting within the line and scope of their employment, was sufficient to sustain the averment of negligence charged to the defendant corporation, and the affirmative charges requested to Count 2 were correctly refused.

Assignments of Error 3 and 4.

These assignments are that the trial court erred in sustaining objections to questions designed to elicit testimony that the plaintiff had been drinking intoxicating beverages between two and three o'clock in the afternoon prior to his injury between the hours of six and six-thirty p. m. of the same day. We note that the Eastern time zone and the Central time zone meet in the vicinity where the accident occurred, and it is not clear whether all the witnesses were referring to the same time zone in their testimony. The trial court understood the elapsed time between the alleged drinking and accident to be four or four and a half hours because it said: '* * * my first reaction was to let it in, but the Courts have held that four hours and a half, that much time elapsing makes the evidence improper, * * *.' If the court's statement was incorrect as to the number of hours, the record fails to show any effect of correction by defendant, and we will consider that the elapsed time as four to four and a half hours.

The trial court first overruled objections to questions designed to prove plaintiff's afternoon drinking of intoxicants, but changed its ruling and sustained the objection before the testimony was given. The statements of the trial court indicate that the testimony was not admitted because, in the court's opinion, it was too remote in point of time

Defendant sought to prove that plaintiff, on the afternoon, aforesaid, had been in the Blue Room, 'a place down below Riverview at that time,' and had there consumed intoxicants. Plaintiff, previously on cross-examination, had denied that he had been 'drinking some there in the Blue Room that afternoon,' and in answer to a question, 'How much drinking had you been doing?' had replied, 'I hadn't drank any.'

Appellant argues that because under Title 36, § 2, Code of 1940, Pocket Parts, it is unlawful for any person who is intoxicated to drive a motor vehicle upon a public highway in this state, if plaintiff 'was driving his automobile at the time of the alleged accident under the influence of intoxicating liquors, then he was driving same unlawfully and was unlawfully on the highway and was a trespasser thereon,' and defendant owed no duty to plaintiff except not to injure plaintiff willfully upon discovery of peril.

We do not agree that one so driving a vehicle on a highway, is a trespasser in the sense that defendant did not owe him the duty to exercise reasonable care not to injure him. In Wise v. Schneider, 205 Ala. 537, 538, 539, 88 So. 662, 663, Somerville, J., in holding that evidence of the intoxication of a defendant driver of a motor vehicle was admitted without error wrote for this court as follows:

'Plaintiff offered evidence tending to show that Davis, who was driving the car, was intoxicated at the time. Such intoxication of itself furnishes no ground for liability if the driver has nevertheless exercised the care of a reasonably prudent driver. (Citations omitted.) But evidence of intoxication is admissible on the issue of negligence vel non, where the evidence as to negligent conduct is in conflict, or conflicting inferences may be drawn therefrom. (Citations omitted.)

'So, also, under the provisions of the act approved April 22, 1911 ...