Louisville & N.R. Co. v. Young

• Decision Date: 26 November 1907
• Citation: 153 Ala. 232,45 So. 238
• Parties: LOUISVILLE & N. R. CO. v. YOUNG.
• Court: Alabama Supreme Court

45 So. 238

153 Ala. 232

LOUISVILLE & N. R. CO. v. YOUNG.

Supreme Court of Alabama

November 26, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.

Action by Roberta G. Young, administratrix, against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

J. M Faulkner, George W. Jones, and John C. Eyster, for appellant.

E. W Godby and W. W. Callahan, for appellee.

McCLELLAN J.

The salient facts of this case may be found set forth in L. & N. R. R. Co. v. Banks, Adm'r, 132 Ala. 471, 31 So. 573. It was then ruled that the complaint charged simple negligence only, and on the succeeding trial below it does not appear to have been altered in that respect. Since Lawrence, the intestate, was palpably guilty of initial negligence in heedlessly stepping on the track in front of the approaching engine (we include the attached tender in the term), the only theory on which plaintiff could recover was that afforded by the asserted subsequent negligence of Engineer McDermott resulting in the fatal injury of intestate after he passed beneath the engine. And to sustain this theory it was incumbent upon the plaintiff to establish to the reasonable satisfaction of the jury, first, that after becoming aware of intestate's peril the engineer failed to exercise due care and diligence to stop the engine and avert injury to him; and, second, that as the proximate consequence of this negligence, if found, Lawrence was injured to his death. It necessarily follows that the initial negligence of Lawrence could not operate to bar a recovery under the doctrine of contributory negligence, because the causation present in his initial negligence was, in the event, interrupted by the alleged subsequent negligence of the engineer, and that initial negligence became the remote cause or condition of his fatal injury, and the subsequent negligence, if the fatal injury attended it, the proximate cause thereof. In other words, the burden assumed by the plaintiff carried the obligation to remove the taint of the initial negligence of Lawrence by sustaining to the requisite degree the charge of the subsequent negligence of the engineer, and also the essential condition to a recovery, viz., that the fatal injury was the proximate result of the subsequent negligence stated. If the initial negligence could be invoked to defeat a recovery, notwithstanding the subsequent negligence of the party charged, and to which latter negligence the injury is ascribable for its proximate cause, the fundamental principle in the law of negligence to liability, viz., proximate cause, would be denied effect. Of course, we do not intend to be understood as asserting that contributory negligence may not intervene to bar a recovery when subsequent negligence is pleaded to fix liability. But we do propose to hold that, to constitute contributory negligence to defeat a recovery, it must be such negligence on the part of the injured party as is subsequent to or concurrent with the subsequent negligence of the party charged. For instance, if, after the injured party and the party charged have become aware of the imperiled situation of theformer, the former fails to conserve his own safety as due care and diligence requires, and this negligence on his part is subsequent to or concurs with that of the party charged, and the injury proximately results therefrom, the negligence of the injured party is contributory, and he cannot recover. These propositions are sustained by the following authorities: L. & N. R. R. Co. v. Brown, 121 Ala. 221, 25 So. 609; Central of Ga. R. R. v. Lamb, 124 Ala. 172, 26 So. 969; Railroad v. Webb, 97 Ala. 308, 12 So. 374; L. & N. R. R. Co. v. Hurt, 101 Ala. 34, 13 So. 130; Burgess' Case, 116 Ala. 509, 22 So. 913; Johnson v. Railway Co. (Ala.) 43 So. 35; Foshee's Case, 125 Ala. 226, 27 So. 1006.

If the contention of appellant's counsel is that initial negligence is contributory negligence barring a recovery unless the injury is wantonly or willfully inflicted--that one who is primarily in fault in placing himself in a position of peril cannot recover for an injury suffered, unless the injury is the proximate consequence of the wanton or willful misconduct of the party charged--the insistence is answered and refuted in the authorities cited. The Mitchell (134 Ala. 261, 32 So. 735) and Haley (113 Ala. 640, 21 So. 357) Cases, asserting, if, indeed, they do, the principle appellant contends for, and collating the earlier decisions in support thereof, have been many times in effect qualified in respect of the necessity, in order for the plaintiff, initially negligent, to recover, that his injury must have proximately resulted from the willful or wanton misconduct of the party charged. There can be no doubt, on this record, that McDermott, the engineer, was aware of the intestate's peril when he saw him in the act of going upon the track in front of the approaching engine. The duty of the engineer was, then, to do all in his power, to use all appliances at hand promptly and in proper order, known to prudent and skillful engineers, to stop the engine, not only with a view to averting an injury, but to prevent an aggravation of it. Good faith and honest intention or belief may be potent in determining whether a wrong is the result of willfulness or wantonness; but it is not availing to refute an imputation of negligence, because, while good faith and honest intention or belief must characterize the performance of the duty, it is the act itself, and not the intent, that denominates acts or omissions as negligent. Authorities supra; Birmingham Ry. & Elec. Co. v. Pinckard, 124 Ala. 372,...