East Tennessee, V. & G.R. Co. v. King

• Decision Date: 02 February 1887
• Court: Alabama Supreme Court
• Parties: EAST TENNESSEE, V. & G. R. CO. v. KING.

2 So. 152

81 Ala. 177

EAST TENNESSEE, V. & G. R. CO. v. KING.

Supreme Court of Alabama

February 2, 1887

Appeal from circuit court, Colbert county.

Action against railroad for damages for personal injury.

The injury for which the appellee, Elizabeth King, brought this suit, was received by her June 28, 1884, while standing upon a side track of the Memphis & Charleston Railroad, of which the appellant was lessee, at Leighton, an incorporated town and station upon said road in Colbert county, Alabama. This side track ran from east to west, and was enough down grade for the cars to move westward, unless held in place by brakes. At the time of the accident there was upon the track at its eastern end, an engine and two cars. West of the engine and cars was a public road crossing. A few feet west of the public crossing, which had been kept open, were two flat cars, and a short distance west of these two cars was a section of box and flat cars, the most westwardly of which was a flat car, which struck the plaintiff. West of this, a distance of about 4 feet, stood the cook-car of a construction train, connected with other cars to its west. In this space of four feet, between the cook-car and the cars to its east, the plaintiff was standing, talking to a woman on the platform of the cook-car, at the time she received the injury. Immediately south of this spot was the cotton platform, from two to five feet high, and north of it was the main track, and there was no public crossing or highway at this spot. The accident occurred in this way: The engine and cars east of the public crossing backed westwardly, at the rate of about a mile an hour, across the public crossing, to make a coupling with and pull forward the two flat cars standing west of the crossing, and in making this coupling the two flat cars were impelled against the section of box and flat cars west of them, which set these cars in motion and plaintiff was caught between the most westwardly of these cars and the cook-car of the construction train.

The testimony on the part of the plaintiff tended to show that no signal of the moving of the engine was given before the accident, either by ringing the bell, or blowing the whistle or otherwise, and that there was no brakeman or watchman on the section of loose cars which struck the plaintiff. On the part of the defendant, the testimony tended to show that the whistle was blown three times as the engine commenced to back, and the bell was rung while backing, and on one of the cars attached to the engine was a brakeman at his post, and a flag-man and switchman were stationed by the two flat cars with which the coupling was to be made, and that plaintiff was not seen, and could not be seen, where she was standing by the employes of the defendant who were conducting and looking after the coupling of said cars. There was testimony that plaintiff was warned of her danger by persons standing near her at the time of the accident, and there was testimony to the contrary.

The defendant pleaded, in short, by consent, "not guilty," and contributory negligence on the part of the plaintiff. The defendant specially and separately excepted to each of the following portions of the general charge of the court, marked, respectively, "A," "B," and "C:" A. "But plaintiff says that the defendant is guilty of negligence in not having some one at the rear of the car to give warning to persons on the track and in not having the brakes on the cars. This is a question for you to decide." B. "If you believe, from the evidence, that defendant was guilty of negligence in failing to place a lookout on the train of cars, or have the brakes applied, and that such injury resulted from such failure, plaintiff would be entitled to recover, unless plaintiff, by her own negligence, contributed to her own injury." C. "If you find for the plaintiff, you will assess her damages at such sum as you may think she is entitled to recover, under the proof, and not exceeding the sum of $499."

The court, on the request, in writing, of plaintiff, gave the following charges, to each of which the defendant separately excepted: "(1) In the employment of steam as a motive power, railroad companies are held to the exercise of extraordinary diligence,-that degree of diligence which very careful and prudent men exercise in the conduct of their own private affairs; and this requires that they shall employ very careful and prudent men, and that the persons employed by them shall exercise such care and diligence as very careful and prudent men exercise in the conduct of their own private interests and important enterprises. (2) The purpose of the statute under which this suit is brought is compensatory and punitive, not only to give compensation to the injured person, but its purpose is to inflict punishment on the corporation or person who inflicts the injury, to stimulate to greater diligence; and, if the jury find for the plaintiff, they will assess such damages as they deem just under the circumstances, not to exceed the amount claimed. (3) If the jury believe, from the evidence, that the injury was caused by the negligence of the railroad company, to which the plaintiff did not contribute proximately, then the plaintiff is entitled to recover. (4) If the manner of the witnesses (naming two of defendant's witnesses, Goodloe and Rutland) were such as to satisfy the jury that they testified false, then the jury may discard their testimony."

The defendant requested, in writing, the following charges, which were refused by the court, and to the refusal of each of which the defendant separately excepted: "(1) If the jury believe the evidence, they will find for the defendant (2) The act of 1872, which is now section 2641 of the Code, has nothing to do with this case; and there can be no recovery of damages, in this case, punitive in their nature, or as a solatium to plaintiff's injuries. (3) This is a suit for personal injuries, not for injuries which have resulted in death, and there are no damages which can be awarded in this case by way of punishment. (4) There can be no recovery in this case of damages for plaintiff's mental agony at the time of the injury, or at any time since. (5) There can be no recovery in this case for punitive or exemplary damages. (6) Gross negligence is negligence amounting to recklessness,-that is, to a degree where a generally malicious or malignant purpose, careless of consequences, might perhaps be presumed, although no hostile purpose was entertained against an individual; and if the jury believe the evidence in this case, unless they find the defendant was guilty of gross negligence, they are bound to render a verdict in favor of the defendant. *** (9) The failure of the...