Kansas City, M. & B.R. Co. v. Phillips

• Decision Date: 26 April 1893
• Citation: 98 Ala. 159,13 So. 65
• Court: Alabama Supreme Court
• Parties: KANSAS CITY, M. & B. R. CO. v. PHILLIPS.

13 So. 65

98 Ala. 159

KANSAS CITY, M. & B. R. CO. v. PHILLIPS.

Supreme Court of Alabama

April 26, 1893

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by M. M. Phillips against the Kansas City, Memphis &amp Birmingham Railroad Company for personal injuries resulting from defendant's negligence. Judgment for plaintiff for $6,500. Defendant appeals. Reversed.

The accident out of which the present suit arose was the same as that stated in the case of Railroad Co. v. Sanders, 13 South. Rep. 57, and the material facts, as shown by the bill of exceptions in this case, are substantially the same. There was evidence introduced tending to show the plaintiff's earning capacity before the injury, and his condition after the injury. Upon the cross-examination of Briggs, who was the master mechanic of the defendant, he testified that "there is a clause in the blank application made by engineers for employment with the defendant in which he pledges himself not to go into saloons or drink whisky, while he is in the employ of the defendant." Russell also testified that this pledge was in force when the accident occurred. It is not deemed necessary to notice in detail the rulings of the court upon the evidence. Upon the introduction of all the evidence the defendant requested the court to give the following written charges, and separately excepted to the refusal to give each of them as asked: (1) "There is no evidence that tends to show that the defendant has been guilty of any corporate negligence that contributed to the collision." (2) "Under the evidence in this case the jury are not authorized to award more than nominal damages for the difference in the earning capacity of the plaintiff before and after his injury, caused by his injury, even if you find there is such difference in plaintiff's earning capacity." (3) "The court charges the jury that when Russell turned his engine over to a hostler on the evening testified to by Slade, and came out on the street went into Wise's saloon, and took a drink testified to by Slade, Russell was not in the service of the defendant, and his so doing was not a violation of the obligation which Russell took when he was employed by the defendant." (4) "The jury are not authorized to award punitive damages in this case." (5) "Although there are tables showing the present value of annuities, at eight per cent interest, on a single life, at plaintiff's age, yet the court cannot take judicial notice of what such tables show; and, there being no evidence to enlighten you on this subject, I charge you that under the evidence in this case, you cannot award the plaintiff any damages for his future inability to work and earn money, even if you find there is such future inability." (6) "To determine the present value of annuity for a period not longer than plaintiff's expectancy of life, considering the uncertainty of life, and that plaintiff may die at any time, estimating such annuity at what his power to labor and earn money has been lessened by reason of his alleged permanent injury, if it has been so lessened, involves an intricate and difficult calculation; and, if you cannot make such calculation, you cannot award the plaintiff any damages for his future inability to work and earn money, if you believe he has any such disability." The defendant also requested the court to give to the jury the five written charges which are hereinafter copied. Upon the court's refusal to give each of these charges, and after he had written in ink on each of them the word "Refused," the counsel for plaintiff stated in open court that they would consent that each of the charges that were refused should be given to the jury. Thereupon the court erased, by drawing a pencil through it, the word "Refused," and wrote upon each of the charges the words "Given by consent." The defendant separately excepted to the said action of the court in regard to each of said written charges so requested by the defendant. Said charges are as follows: (1) "If the jury should find for the plaintiff, in estimating the plaintiff's damages for his diminished capacity to earn a livelihood by reason of his injury, if the jury believe he is entitled to any such damages, the measure of such damages would be the present value of an annuity equal in amount to the amount the jury find to be the annual diminution in plaintiff's capacity to earn a livelihood by reason of his injury, for a period not longer than the expectancy of plaintiff's life; and unless the jury can determine from the evidence, or their own knowledge, what the present value of such an annuity would be, they are not authorized to award the plaintiff any damages arising from such diminished capacity to earn a livelihood." (2) "The court charges the jury that when Russell turned his engine over to a hostler on the evening testified to by Slade, and came out on the street, and went into the saloon of Wise, and took the drink testified to by Slade, Russell was not in the service of defendant." (3) "It is the duty of the jury, before they award plaintiff any damages for his diminished capacity to earn a livelihood by reason of his injury, if the jury believe from the evidence that the plaintiff is entitled to such damages, to calculate the present value of an annuity equal in amount to the amount the jury may find from the evidence to be the amount which would compensate plaintiff for his diminished capacity to earn a livelihood for a period of one year, and continuing during a period not greater than the plaintiff's expectancy of life, considering the uncertainty of life, and the fact that plaintiff may die at any time; and if the jury are unable from the evidence, and their own knowledge, to calculate the present value of such an annuity, they are not authorized to award plaintiff any damage for such diminished capacity to earn a livelihood." (4) "The measure of damage for plaintiff's diminishing capacity to earn a livelihood, if the jury believe the plaintiff is entitled to such damage, is such a sum as, if put out at compound interest at the legal rate, would just suffice to pay the plaintiff an annuity equal in amount to the amount the jury may find from the evidence would compensate the plaintiff for one year for his diminished capacity to earn a livelihood, and for a period of time not greater than the plaintiff's expectancy of life, considering the uncertainty of life, and the fact that the plaintiff may die at any time." (5) "If you should find for the plaintiff, in estimating the damages the plaintiff would be entitled to for his future inability to work and earn money, I charge you he would be entitled to the present value of an annuity for a period not longer than his expectancy of life, estimating such annuity at what his power to labor and earn money has been lessened by reason of his alleged permanent injury; and, there being no evidence showing what the present value of such an annuity is, you cannot award the plaintiff any damages for his future inability to work and earn money." After the rendition of the judgment the defendant moved the court for a new trial, assigning several grounds therefor. The principal grounds for the motion for a new trial are sufficiently stated in the opinion. The court overruled this motion, and the defendant duly excepted.

Wallace Pratt and Hewitt, Walker & Porter, for appellant.

Bowman & Harsh, for appellee.

HEAD J.

This is an action for damages for personal injuries sustained by appellee, as a passenger, by a collision of trains on appellant's road. On the main case the questions arising for decision grow out of exceptions to testimony and charges given and refused. Appellant's counsel insist specially, in argument, upon one only of the objections to testimony, and we will not comment on them in detail. We have carefully examined and considered them all, and find none well taken. If it was illegal for plaintiff to prove by the witness Dr. Wilson, on cross-examination, that he was the employed physician of another railroad company, no objection was made to it until after the evidence was closed, and the case partially argued, when defendant moved to exclude it. We think it was then too late to insist, as a legal right, upon its exclusion. If it was illegal its exclusion rested in the discretion of the court, at that stage of the trial. 1 Thomp. Trials, § 715.

The first charge requested by the defendant was that there was no evidence that tends to show that the defendant has been guilty of any corporate negligence that contributed to the injury. For a disposition of this question we refer to what we said in reference to a similar charge in the case of Railroad Co. v. Sanders, 13 South. Rep. 57, (at the present term.) The charge was properly refused.

There was evidence tending to show that plaintiff, prior to injury, was capable of earning $100 per month and that his services were worth that much, and that after the injury he was unable to attend to any business, or do any work, up to the time of the trial, wherefore the second charge requested was manifestly bad.

The testimony of the witness Briggs tends to show that Russell, the engineer of defendant, who was charged with negligence causing plaintiff's injury, was under a contract and duty not to go into saloons, or drink whisky, while in the "employ" of defendant. The defendant's third charge would construe this to mean that Russell was not in the employ of defendant during the interval from his arrival in Birmingham,-a terminus of the road,-on one day, until his departure therefrom, on the next, in the service of the company. Obviously, such is not the meaning of the contract.

Under the facts of this case, it was, at least, a question for the jury whether...