Davis v. Smitherman

• Decision Date: 12 April 1923
• Docket Number: 6 Div. 703.
• Citation: 96 So. 208,209 Ala. 244
• Parties: DAVIS, DIRECTOR GENERAL OF RAILROADS, v. SMITHERMAN.
• Court: Alabama Supreme Court

96 So. 208

209 Ala. 244

DAVIS, DIRECTOR GENERAL OF RAILROADS, v. SMITHERMAN.

6 Div. 703.

Supreme Court of Alabama

April 12, 1923

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action for damages by O. Smitherman against James C. Davis, as Director General of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed.

Tillman Bradley & Baldwin, of Birmingham, and Huey & Welch, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

MILLER J.

O Smitherman sues the defendant, appellant here, for damages to himself, his automobile, watch, and personal apparel, alleged to have been caused by the wanton conduct of appellant's agents or servants while acting in the line and scope of their employment in charge of one of appellant's locomotive engines. The injury occurred between 5 and 7 o'clock in the evening of December 12, 1918, at a point where the railroad operated by defendant crossed one of the public roads at Readers, near Bessemer, in Jefferson county.

The complaint as originally filed contained four counts, but the court in its oral charge eliminated counts 1, 2, and 4, and count 3 was submitted by the court to the jury under plea of general issue filed by defendant to it. The jury returned a verdict in favor of the plaintiff, and this appeal is from a judgment thereon by the court. This is the second appeal in this case. Payne v. Smitherman, 206 Ala. 591, 91 So 575.

Count 3 is the same on this as on the former appeal, except it was amended by striking out John Barton Payne, Director General of Railroads, as Agent under section 206 of the Transportation Act of 1920, as party defendant, and inserting as sole party defendant in lieu of him James C. Davis, Director General of Railroads, as Agent under section 206 of the Transportation Act of 1920. This amendment was permissible, and authorized by sections 206a and 206d of the Transportation Act of 1920 (41 Stat. 461, 462). It was the same officer, the successor in office, and was not an entire change of party defendant. Payne v. Smitherman, 206 Ala. 591, 91 So. 575. This count was also amended by adding after the words "mental anguish" the following: "And his health and physical stamina have been greatly impaired." This count on former appeal was held sufficient as a wanton count. These amendments to it did not change its legal effect to make it demurrable, and the court did not err in overruling the demurrer assigned to it as amended. M. & C. R. Co. v. Martin, 117 Ala. 367, 23 So. 231; Payne v. Smitherman, 206 Ala. 591, headnote 1, 91 So. 575.

The defendant filed 12 pleas to count 3; plea 1 being general issue. Demurrers to pleas 2, 3, 4, 6, 8, 9, 11, and 12 were sustained by the court. These pleas set up, or attempted to set up, facts constituting contributory negligence of the plaintiff in answer to count 3, which charged defendant with wanton negligence. A plea of contributory negligence is no answer to a count averring the wanton negligence of defendant caused the injury. A. G. S. R. R. Co. v. Frazier, 93 Ala. 45, 9 So. 303, 30 Am. St. Rep. 28; L. & N. R. R. Co. v. Markee, Adm'x, 103 Ala. 160, 169, 15 So. 511, 49 Am. St. Rep. 21; L. & N. R. R. Co. v. Watson, 90 Ala. 68, 8 So. 249. These pleas of contributory negligence were no answer to this wanton negligence count numbered 3, and the demurrers of plaintiff to each were properly sustained by the court.

Pleas 5 and 10 attempt to or set up facts constituting wanton negligence of the plaintiff, which contributed to the injuries complained of in count 3. The wanton contributory negligence of the plaintiff would not justify the defendant in wantonly injuring him, and such a plea would be no bar to an action based on the wanton negligence of the defendant, as declared on in count 3. This was clearly declared by this court in L. & N. R. R. Co. v. Orr. 121 Ala. 489, headnote 6, 26 So. 35. See, also, L. & N. R. R. Co. v. Markee, 103 Ala. 161, 170, 15 So. 511, 49 Am. St. Rep. 21. The court properly sustained demurrers to pleas 5 and 10 to count 3.

Virgil Welch, witness for plaintiff, was asked the following question by plaintiff: "Do you remember the time of the accident that Mr. O. Smitherman had there at Readers on September 13, 1918?" This witness saw the collision, and the question was a proper preliminary one. The defendant objected to the question because it was "leading and suggestive," which objection the court overruled. The court in its sound discretion may permit a party calling a witness to propound leading and suggestive questions, and, if the discretion is not abused, the court will not be placed in error. This discretion was not abused by the court in this instance. Section 4018, Code 1907; Cooper v. Slaughter, 175 Ala. 211, headnote 6, 57 So. 477.

Questions were properly allowed by the court to be propounded to witnesses who saw the train and automobile running at the time of the collision as to the rate of speed of either. They could testify, if they knew, whether it was running fast or slow, or the number of miles per hour, as it appeared to them. True, running slow or fast are relative terms, but the meaning of the witness using them can be drawn out on cross-examination by the other party; such evidence in case of a collision is germane to the issue. Montgomery St. Ry. Co. v. Shanks, 139 Ala. 489, 37 So. 166; Birmingham Ry. v. Franscomb, 124 Ala. 621, 27 So. 508; Cedar Creek Store Co. v. Steaham, 187 Ala. 622, 65 So. 984; Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 So. 262; Payne v. Roy, 206 Ala. 432, 90 So. 605, headnote 3.

Plaintiff's witness Welch saw the collision, but did not know Smitherman, the plaintiff, was the person that was injured; and the next morning he saw Dr. Smith. The court would not permit defendant on cross-examination to ask Welch if "he [Dr. Smith] told you that Mr. Smitherman got hurt?" In this there was no error, as it was inadmissible. It was clearly hearsay testimony. The parties were not present during the conversation. 6 Michie, Dig. 257, § 228. The following question to this witness: "So after hearing Mr. Smitherman gets [got] hurt, you come up here and testify about seeing him get hurt, do you?"-was argumentative, and properly disallowed by the court. The question, "What was it Mr. Ezell came to see you about?" called for hearsay evidence, and the court did not err in sustaining objection of plaintiff to it. The witness testified he saw Mr. Ezell, and the question, Did Ezell come to see you?" could shed no light on the issue. The witness testified, "Mr. Ezell did not come to me and talk to me about the case." The defendant did not show the court what he expected as an answer to the question, and that it would be relevant to the issue in the case. The court did not err under the circumstances in sustaining objection to the question, "Did Ezell come to see you?" Autrey v. State, 190 Ala. 10-13, 67 So. 237; B. L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262; 6 Michie, Dig. 257,§ 228.

The court did not err in permitting proof of the physical condition or appearance of plaintiff as to health, strength, and weight prior to the collision, his injuries in the collision and the effect of it on his consciousness, his appearance as to health, strength, and weight afterwards by persons who knew, saw, and observed him. L. & N. R. Co. v. Hayward, 201 Ala. 9, and authorities therein cited, headnote 2, 72 So. 22; Thornton v. State, 113 Ala. 43, headnote 1, 21 So. 356, 59 Am. Rep. 97.

The injury occurred at a public crossing between 5 and 7 o'clock p. m. The following evidence as to the surroundings at this crossing at that time was properly allowed by the court to go to the jury:

"The population is quite large, but the buildings are not. *** There are at least 300 houses, large office building, commissary, extensive works, and hospital surrounding the place. About 1,000 men worked there. *** This public road which crosses the track is the main thoroughfare leading from Bessemer to Lacey's Chapel. *** Somebody passing there constantly; there is something passing, some kind of a vehicle, passing there constantly. *** Well, there is much traffic at that time [7 to 8 o'clock p. m.] across that point as at any other time, and it was noisy at that time there from the rock crushers, hoisting engines and compresses."

The meaning of the relative terms "quite large" and "main thoroughfare," as used by the witnesses, could be learned from them by proper cross-examination. This evidence tends to show the size of the community at the public crossing, and the use of it by the public, and it was admissible for the jury to consider if its use was so common and constant as to charge the operators of defendant's train with notice thereof. In A. G. S. R. R. Co. v. Arnold, 84 Ala. 168, 4 So. 364, 5 Am. St. Rep. 354, this court said:

"Precautionary requirements increase in the ratio that danger becomes more threatening."

See, also, A. G. S. R. R. Co. v. Snodgrass, 201 Ala. 653, 79 So. 125; Payne v. Roy, 206 Ala. 432, 90 So. 605; South. Ry. Co. v. Stewart, 179 Ala. 304, 60 So. 927; L. & N. R. R. Co. v. Johnson, 201 Ala. 611, 79 So. 43.

The car of plaintiff injured in the collision was a Ford, and damages for its injury were claimed in this third count. The court permitted a witness to testify, "I cannot remember just what the cash value was at that time [time of collision] of a new Ford car," and that the car of plaintiff's was practically a new car. The age, use, and condition of the car before the collision and its condition after the injury were relevant to go to the jury to be considered by them in determining the amount of damage done to it. The defendant objected to the questions calling for the above answers, but did not...