Davis v. Morgan County

• Decision Date: 26 April 1923
• Docket Number: 8 Div. 534.
• Citation: 209 Ala. 343,96 So. 473
• Parties: DAVIS, AGENT, ETC., v. MORGAN COUNTY.
• Court: Alabama Supreme Court

96 So. 473

209 Ala. 343

DAVIS, AGENT, ETC., v. MORGAN COUNTY.

8 Div. 534.

Supreme Court of Alabama

April 26, 1923

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action for damages by Morgan County against James C. Davis, as Agent, etc. From a judgment for plaintiff defendant appeals. Affirmed.

Eyster & Eyster, of Albany, for appellant.

Callahan & Harris, of Decatur, for appellee.

McCLELLAN J.

Action for damages, instituted by appellee against the appellant for injuries to an auto truck belonging to the county of Morgan and driven at the time by one Thomason, through the collision therewith of an engine operated over the Louisville & Nashville Railway at a public, frequently used street crossing in the town of Falkville, Ala.

This is the second appeal. Morgan County v. Payne, Director General, 207 Ala. 674, 93 So. 628. It was held on that appeal that contributory negligence on the part of the truck's driver, Thomason, could not be imputed to the county of Morgan unless Thomason was its agent, servant, or employee in the operation of the truck on the occasion in question. Pleas were interposed by the defendant in which that relation was averred, and thereupon the concluding effect asserted against the plaintiff's right to recover. The evidence shows without dispute, that Thomason was not the agent, servant, or employee of the plaintiff in the operation of the truck on the occasion in question. There was evidence and reasonable inferences deducible therefrom, presenting issues of fact, due to be submitted to the jury, with respect to both initial and subsequent negligence on the part of the servants, agents, or employees operating the train in question; the complaint ascribing, generally, the truck's injury, for proximate cause, to "agents or servants in charge" of the train doing the damage without naming the operatives so in charge. Furthermore, the statutes (Code, §§ 5473-5476) imposed upon defendant the burden of proof to negative the presence of negligence, within the purview of the cited statutes, as legally causative of the damage. The defendant was not entitled to general affirmative instruction on either theory of negligence; nor upon the notion that only Austin, the engineer, was "in charge of the train" for purposes of lookout and signal, or either, to avoid collision with obstacles about the track over which the train was moving with the engine's tender forward. Brown v. L. & N. R. R. Co., 111 Ala. 275, 289, 19 So. 1001.

Two elements of the inquiry of negligence vel non by the train's operatives were, in connection with other evidence, put in positive issue by these statements of the witness Thomason:

"*** It [i. e. engine or train] didn't give any signals until just before it [i. e. train] hit it [i. e. truck]. *** In my judgment that train must have been running 20 to 25 miles an hour, and it did not slacken in speed any before it hit the truck. ***"

A number of the assignments of error related to rulings on the admission of testimony. No error intervened through these rulings. The frequency of use of the crossing where the collision occurred was not shown by comparison with the use of another crossing in the town; the witness merely taking that method of indicating his judgment that most of the people in town used the crossing in question. While the language employed to express the witness Hanby's (a county commissioner) opinion of the value of the truck at the time of its injury might have been more definitely expressive of his opinion in the premises, yet the terms h...