Goodgame v. Louisville & N.R. Co.

• Decision Date: 20 December 1928
• Docket Number: 5 Div. 989
• Citation: 218 Ala. 507,119 So. 218
• Court: Alabama Supreme Court
• Parties: GOODGAME v. LOUISVILLE & N.R. CO. et al.

119 So. 218

218 Ala. 507

GOODGAME v. LOUISVILLE & N.R. CO. et al.

5 Div. 989

Supreme Court of Alabama

December 20, 1928

Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.

Action by W.H. Goodgame against the Louisville & Nashville Railroad Company and Frank McGregor.From a judgment for defendantsplaintiff appeals.Affirmed.

Grady Reynolds and Omar L. Reynolds, both of Clanton, and Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

Lawrence F. Gerald, of Clanton, and Steiner, Crum & Weil, of Montgomery, for appellees.

FOSTER J.

This court has defined the law pertaining to the subject of this litigation in numerous cases.Some of them may be mentioned as follows: Pettus v. L. & N.R.R. Co.,214 Ala. 191106 So. 807;Wilson Bros. v. M. & O.R.R. Co.,208 Ala. 581, 94 So. 721;Id., 207 Ala. 171, 92 So. 246;A.G.S.R.R. Co. v. Davenport,195 Ala. 368, 70 So. 674;L. & N.R.R. Co. v. Reese,85 Ala. 502, 5 So. 283, 7 Am.St.Rep. 66;A.G.S.R.R. Co. v. Hanbury,161 Ala. 358, 49 So. 467;A.G.S.R.R. Co. v. Loveman,196 Ala. 683, 72 So. 311;So. Ry. Co. v. Dickens,161 Ala. 144, 49 So. 766.The burden of proof as to the respective parties is fully stated in these cases, and it is unnecessary to repeat it here.

Appellant insists that charge No. 2 violates the rules, because (1) it misplaces the burden and (2) requires that the negligence be a corporate act, excluding the negligence of a servant.The charge only undertakes to state a principle of law.It does not mention the burden of proof.It does not predicate a verdict upon any particular finding by the jury.The charge merely states in effect that the basis of the right of recovery against the railroad company is the negligence of such company.No one has ever questioned that since our cases have defined the principles of law pertaining to such circumstances.No one now contends that the railroad company is an insurer against loss by fire set out from its engines.The owner of the property should have proof either directly or circumstantially that the train of defendant set the fire causing the injury.There is sufficient circumstantial evidence here for submission of the question to the jury.The burden is on the railroad to acquit itself of negligence in that respect, if the jury finds that the railroad caused the fire as charged.A.G.S.R.R. Co. v. Davenport, supra.This for the reason that whether there was negligence in fact is peculiarly within the knowledge of the railroad.But it does not mean that negligence is not a necessary element of recovery.Negligence is a material allegation of the complaint.The law will indulge a rebuttable presumption of negligence when it is shown that the engine set out the fire.But in every instance negligence is a necessary element, and must be alleged in the complaint.So. Ry. Co. v. Dickens, supra.The court in its oral charge fully and properly explained to the jury the law as respects the burden of proof.Because the burden is one defendant to show want of negligence in certain circumstances does not make it any the less an essential element.

As to the second objection made by appellant to this charge, we observe that the rule referred to does not apply to charges of negligence, but only to wanton or willful injuries.A charge of negligence to defendant is the same as if the charge were to the servant of the defendant, acting within the scope of his duty.But a charge of wantonness to defendant corporation charges a corporate act.B.C., I. & L. Co. v. Doak,152 Ala. 166, 173, 44 So. 627, 12 L.R.A. (N.S.) 389;L.M.I. Co. v. Lea,144 Ala. 169, 174, 39 So. 1017;B.R. L. & P. Co. v. Ella P. Moore,148 Ala. 115, 42 So. 1024;Morrison v. Clark,196 Ala. 670, 674, 72 So. 305;City Delivery Co. v. Henry,139 Ala. 161, 34 So. 389;31 Cyc. 1626.

The complaint in this case does not attribute the negligence to the servants or agents of the defendant.The charge follows the complaint.Although the complaint charges negligence to the defendant, it may be proven by the negligence of its servants acting within the line and scope of their authority.The charge in this respect need not be more specific than the complaint.That the charge may have a misleading tendency in that respect does not make it reversible error.

Charge 4 is subject to the same comment as charge 2.In fact, it rather recognizes the burden of proving want of negligence to be on defendant, and that to the reasonable satisfaction of the jury.Certainly, as stated in this charge, it is the negligence of the defendant in causing the fire which is the foundation of the suit.And if the jury is reasonably satisfied that no such negligence caused the fire, there can be no recovery.While the jury should certainly not go outside the evidence to find the cause of the fire, the plaintiff must reasonably satisfy the jury that it was caused by defendant and not due to some other source.It was not speculative for the jury to find that the evidence did not reasonably show that the defendant caused the fire.

Charge 5 is a correct statement of a legal proposition.So. Ry. Co. v. Dickens, supra.While it is not always advisable simply to state to the jury a legal proposition, it is not error to do so, when it is correctly stated.

It is urged that charge 14 was error because, while it requires a...