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

• Decision Date: 26 April 1893
• Citation: 13 So. 57,98 Ala. 293
• Court: Alabama Supreme Court
• Parties: KANSAS CITY, M. & B. R. CO. v. SANDERS.

13 So. 57

98 Ala. 293

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

Supreme Court of Alabama

April 26, 1893

Appeal from circuit court, Walker county; James B. Head, Judge.

Action by Bell Sanders, as administratrix, against the Kansas City Memphis & Birmingham Railroad Company, for the wrongful death of R. E. Sanders. Judgment for plaintiff. Defendant appeals. Affirmed.

Before proceeding to the trial of the cause the defendant made a motion for a change of venue, making affidavit that because of the facts set forth in the affidavit the defendant could not have a fair and impartial trial in the county of Walker where the trial was then pending in the circuit court. There was a great deal of evidence introduced in support of this motion. On hearing the evidence and the arguments thereon the court overruled this motion. To this ruling the defendant duly excepted. The material facts gathered from the bill of exceptions may be summarized as follows: Appellee's intestate was on a train of the appellant as a passenger. That, through a mistake of the defendant's engineer, he left the passenger station at Birmingham, leaving the conductor and a sleeper. The engineer did not discover the mistake until he reached Ensley, five or six miles from Birmingham. Upon discovering his mistake at Ensley, the engineer, after waiting about a minute or two, started to back his train to Birmingham. There was no light on the rear coach, and he was backing at the rate of 15 to 30 miles an hour. That when they had gone back about two miles and a half in the direction of Birmingham the train on which plaintiff's intestate was a passenger collided with the extra freight, which was ordered to move out in rear of the passenger train, and by this collision the plaintiff's intestate was so injured that he died from the effects of his injuries. The testimony showed that the passenger train of the defendant, going west, usually waited at night an hour for the Georgia Pacific passenger train, when it was behind time, in order to carry a sleeper which the Georgia Pacific train brought in. That on the night of the accident the Georgia Pacific was one hour behind time, and that as the Georgia Pacific train was coming into the city, when about two or three blocks from the passenger depot, J. J. Mullins night station master of the depot, signaled the engineer of the defendant's train, Russell, to pull down out of the shed. This signal was given by Mullins in order that the Georgia Pacific, coming in, could come in on the same track but the engineer of the defendant mistook the signal for that of its conductor, and pulled out, leaving the conductor and the sleeper behind. Mullins and the conductor of the defendant were dressed alike, and the signal given by Mullins was the same kind of a signal that the conductor would have given, to pull out. Upon the examination of Slade, who testified that he was foreman in the mechanical department of the defendant road, and that he had charge of the locomotives, engineers, and firemen, and had authority to employ, suspend, and discharge engineers, the plaintiff asked him the following question: "State whether or not Russell was discharged from the service of the Kansas City, Memphis & Birmingham Road for drinking, or was ever suspended for drinking." Defendant objected to this question because it was illegal, irrelevant, and immaterial. Upon the counsel stating that they expected to connect the evidence with evidence tending to show that Russell was drinking at the time of the accident, the court overruled the objection, and allowed the evidence, and the defendant duly excepted. The witness said, "Yes, sir; he was." The witness further testified that after Russell was suspended by him he reported it to Briggs, the master mechanic of the defendant, who was his superior, and that Briggs reinstated Russell within 24 or 36 hours. After this witness had testified that he had known Russell three years prior to the time he was suspended, and knew his habits as to drinking, the plaintiff asked him the following question: "What were his habits?" The defendant objected to this question because it was illegal, irrelevant, and immaterial, and duly excepted to the court's overruling his objection. The witness answered: "He was a regular drinker. I cannot say he drank to excess, but he was a man who could stand a great deal of whisky." Upon Joe Spanier being called as a witness for the plaintiff he testified that he remembered reading about the collision at Ensley the next day. The plaintiff then asked the witness the following question: "Did you see Charles Russell the night of the wreck, or the evening of the wreck?" Witness answered he did, and then testified to seeing Russell take several drinks during the evening, and that he was somewhat under the influence of drink. The defendant moved the court to exclude the testimony of Joe Spanier in regard to the condition and whereabouts of Charles Russell on the night of the 21st of October, 1890, on the ground that the testimony of Spanier did not identify the said Charles Russell, about whom he testified, with the Charles E. Russell who was the engineer of the defendant's passenger train on the night of the collision. The court overruled the motion, and the defendant duly excepted.

The defendant requested the court to give the following charges and separately excepted to the court's refusal to give each of them, as asked: (1) "The only negligence for which the defendant is liable in this action is that of its engineer, Charles Russell, even if the jury believe that there was negligence on the part of any other employe of the defendant." (2) "If you believe the evidence in this case, you must find for the defendant." (3) "In assessing the damages in this case the jury cannot look to the fact that the defendant is a corporation." (4) "The jury, in considering the question of punitive damages, are authorized to take into consideration the fact, if they find such to be the fact, that the defendant was not guilty of any corporate negligence,-that is, negligence on the part of the defendant itself as a corporation, or of its governing officers." (5) "There is no evidence in this case of any corporate negligence,-that is, negligence of the defendant itself, as a corporation, or of its governing officers." (6) "It was not negligence on the part of the defendant to provide the conductor on its passenger train with signal lamps and uniforms of the same or similar color with those furnished to the station master, J. H. Mullins." (7) "The only negligence of the defendant's engineer, Charles Russell, for which the defendant is chargeable in this action, is in his backing up the passenger train from Ensley without lights, and without having sent a flagman fifteen telegraph poles in front of the advancing passenger train, and in running at a negligent rate of speed while so backing, and at the time of the collision, if the jury believe that he did so run." (8) "There is no evidence of any negligence upon the part of the witness J. H. Mullins in regard to the questions involved in this suit." (9) "There is no evidence that the defendant's master mechanic, R. R. Briggs, had any notice before the time of the accident that the defendant's engineer, Charles Russell, was not a sober and competent engineer." (10) "The jury are only authorized to award nominal damages in this case." (11) "It was not negligence on the part of the defendant, of which the plaintiff can complain, for the defendant to provide the conductor on its passenger train with signal lamps and uniforms of the same or of similar color with those furnished to the station master, J. H. Mullins." (12) "The jury are not authorized to award the plaintiff punitive damages because of the negligence of defendant's engineer, Charles Russell, in leaving the Union Depot in Birmingham without his conductor, and without his sleeper." (13) "The defendant is not liable for damages in this case because of the act of its engineer, Russell, in leaving with his train the Union Depot in Birmingham without his conductor, and without his sleeper." (14) "The jury are not authorized to award punitive damages in this case unless they believe that the defendant was guilty of willful, wanton, or reckless negligence." (15) "The fact that the defendant used due care in the selection and retention of the engineer, Charles Russell, if the jury believe such to be the fact, and the fact that it provided and promulgated rules suitable for the reasonable safety of its employes and passengers, if the jury believe such to be the fact, may be considered by the jury in mitigation of that amount of damages awarded by way of punishment." (16) "Unless you shall believe from the evidence that the witness Joe Spanier has told you the truth, you ought to find that the engineer, Russell, was neither drunk nor drinking on the night of, and at the time of, the collision." (17) "The jury, in considering the amount of punishment to be awarded in this case, are authorized to take into consideration the fact, if they believe such to be the fact, that there are pending three other cases in which damages by way of punishment against the defendant for the same negligence may be awarded." (18) "That, if the evidence in this case shows to the satisfaction of the jury that defendant corporation was not guilty of any corporate negligence in this case, they may look, and should look, to such fact, in determining the amount of damages they assess in the way of punishment to the defendant in this case." (19) "That if the jury believe that Slade removed Russell on account of Russell's reporting Slade to Briggs for drunkenness, and not for his having taken a drink with Walter Moore, then I charge you that the fact of...