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

• Decision Date: 30 November 1904
• Citation: 39 So. 207,142 Ala. 298
• Parties: KANSAS CITY, M. & B. R. CO. v. MATTHEWS.
• Court: Alabama Supreme Court

39 So. 207

142 Ala. 298

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

Supreme Court of Alabama

November 30, 1904

Appeal from Circuit Court, Marion County; Ed. B. Almon, Judge.

Action by Florence Matthews, as administratrix of Walter H Matthews, deceased, against the Kansas City, Memphis &amp Birmingham Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

Rehearing denied February 14, 1905.

The seventh count of the complaint is set forth at length in the opinion. Defendant demurred to that count of the complaint upon the following grounds: (1) For that the count is vague uncertain, and indefinite; (2) for that the count does not show any causal connection between the intestate's death and the alleged negligence of the defendant; (3) for that it is not averred or shown that defendant's agent knew that said intestate was in the act of getting off of said train: (4) for that it does not appear that defendant or its employés violated any duty which defendant owed said intestate; (5) for that it is not averred or shown that said intestate died as a proximate result of the negligence of the defendant; (6) for that the injuries sustained by said intestate are not shown; (7) for that it appears that said intestate undertook to leave a moving train, and that he was thereby guilty of negligence which proximately contributed to his death; (8) for that it is not shown wherein defendant or its agent was negligent. This demurrer was overruled by the court.

The fifth plea of the defendant is as follows: "For further answer to the said complaint, and each count thereof, separately and severally, the defendant says that the plaintiff's intestate was guilty of negligence which proximately contributed to the injuries received by him, and such contributory negligence consisted in this: The plaintiff's intestate alighted from a moving train in the nighttime, at a dark and unlighted place, without requesting that the train be stopped for him to alight."

The defendant requested the court to give to the jury, among others, the following written charges, which the court refused to give: "(3) The court charges the jury that no one has the right to leap from a moving train in the nighttime, at an unlighted place, because he is being carried beyond his destination, with the expectation of claiming from the railroad damages for any injury he may sustain. His duty is to remain aboard and demand redress for the injury that may be done him. * * * (5) If the jury find from the evidence that W. H. Matthews alighted from defendant's train at Guin in the nighttime, at a dark and unlighted place, without requesting that the train be stopped for him to alight, then the verdict of the jury must be for the defendant on all the counts of the complaint which charge simple negligence only. * * * (7) If the jury find from the evidence that W. H. Matthews negligently got off, or negligently attempted to get off, defendant's train at Guin, while said train was in motion, and was thereby injured, the verdict of the jury must be for the defendant on each count of the complaint. * * * (9) If the jury believe from the evidence that the defendant's train was stopped at Guin a sufficient time to allow W. H. Matthews in the regular and orderly way to alight therefrom, and that said Matthews delayed leaving the train until it had started again, and that as he was about to alight from the train he was cautioned by some passenger or other person that the train was running too fast, and that he had better wait, and that notwithstanding such caution, if any, he yet attempted to alight from the train while it was so moving, and was injured by falling or being thrown from said train, then he cannot recover on any count in the complaint which charges simple negligence. (10) If, in attempting to alight from defendant's train under the circumstances shown by the evidence in this case, W. H. Matthews failed or omitted to do what a reasonably prudent man would have done under similar circumstances, then he was guilty of contributory negligence which will bar any recovery in this case. (11) The court charges the jury that if it be true that Matthews supposed that he was at his station, and the defendant company gave him no sufficient opportunity to get off of the train at his destination, and he had been carried beyond it, the conductor would have been bound on his demand to stop his train, and return and put him off at his station, or, failing therein, the defendant would have been liable in damages for having carried him beyond his destination. * * * (14) If the jury believe from the evidence that the death of the plaintiff's intestate was caused directly by disease occurring after April 1, 1900, then they must find for the defendant. (15) The argument is not sound which seeks to trace the immediate cause of the death of W. H. Matthews through the previous stages of physical suffering and months of disease and medical treatment to the original accident on the railroad."

The court, at the request of the defendant, gave to the jury, among others, the following written charge: "(46) If the jury find from the evidence that W. H. Matthews negligently got off, or negligently attempted to get off, defendant's train at the depot in Guin, while said train was in motion, and the injuries he suffered were thereby caused, then the verdict of the jury must be for the defendant."

Walker, Tillman, Campbell & Walker, for appellant.

Daniel Collier and Frank S. White & Sons, for appellee.

McCLELLAN C.J.

The only caption of the complaint was that under which the original counts were written. To these several other counts were added, but without further statement of the caption. This caption is as follows: "Mrs. Florence Matthews Administratrix of the Estate of Walter H. Matthews, Deceased, versus The Kansas City, Memphis and Birmingham Railroad Company, a Corporation." There were six counts in the complaint as originally filed. In the first, fifth, and sixth counts the capacity in which plaintiff sues is thus stated: "The plaintiff, as administratrix of the estate of Walter Matthews," etc. In the second, third, and fourth counts the capacity is shown by this averment: "The plaintiff, as aforesaid [i. e., as such administrator], claims" of the defendant, etc. Thus the complaint stood undoubtedly as a suit by Mrs. Matthews in her capacity as administratrix of the estate of Walter H. Matthews, deceased, when she as such plaintiff asked leave to amend the complaint by adding thereto count 7. Upon this request the court's order is this: "Florence Matthews, as Administratrix of W. H. Matthews, Deceased, v. Kansas City, M. & B. R. R. Co. February 5, 1901. Damages. Leave granted plaintiff to file additional count No. 7 submitted on demurrers, and continued." This amendment to the complaint is in the following language: "Seventh Count. The plaintiff claims of the defendant the further sum of $30,000 damages, for that, whereas, on, to-wit, the 10th day of November, 1899, her intestate, the said Walter H. Matthews, was a passenger on the railroad of the defendant, which was a railway corporation for the transportation of freight and passengers, on one of the passenger trains of defendant from Birmingham to Guin, Ala., the plaintiff alleges that on said date her intestate as such passenger was, through and by the carelessness and negligence of the defendant's servants, agents, or employés, violently thrown from the train at or near said Guin, Ala., and so greatly injured, bruised, hurt, and shocked by the injury thus sustained that he never recovered therefrom, but soon thereafter died on account of the said injuries." This count 7 thus became an integral part of a complaint which in its other six counts affirmatively and directly showed that plaintiff was suing in her representative capacity. In that capacity she moved for leave to add this count, and to her in that capacity leave was granted. This count, moreover, by its own terms, shows in a way that the plaintiff is therein claiming damages in her representative capacity. It avers that "her intestate" was a passenger, etc., and that "her intestate," was thrown from the train, etc. So long as other counts remained in the case, it was not suggested by defendant that this count was not filed and prosecuted by the plaintiff in her representative capacity. A demurrer was interposed to it, but thereby no objection was made for departure, or in other respect, upon any theory that it set forth a claim in the plaintiff's individual capacity. No motion to strike it was made. But on the trial, after some of the other counts had been eliminated on demurrer sustained, and the affirmative charge with hypothesis had been given for defendant as to all the rest, except this count 7, the affirmative charge was requested against it, also; and one of the arguments here made in support of the exception to the court's refusal of that request is that the complaint, viz., this count 7, claims damages for the plaintiff as an individual, while the proof, if it makes any case for recovery, shows a right of recovery in the plaintiff as administratrix only. The position is not tenable. Several of the counts which stood the attack of the demurrers, but as to which the general charge was given for defendant, averred unequivocally that plaintiff sued as administratrix. Though charged against, they were still in the case for all the purposes of showing plaintiff's capacity; and upon this, with the other considerations to which we have adverted, we hold that in this count 7 the plaintiff sues as the personal representative of Walter H. Matthews, deceased. Lucas v. Pittman, 94 Ala. 616, 10 So. 603; Louisville & Nashville Railroad Company v. Trammell, 93 Ala. 350, 9 So....