Louisville & N.R. Co. v. Moran

• Citation: 76 So. 7,200 Ala. 241
• Decision Date: 31 May 1917
• Docket Number: 8 Div. 863
• Court: Supreme Court of Alabama
• Parties: LOUISVILLE & N.R. CO. v. MORAN.

76 So. 7

200 Ala. 241

LOUISVILLE & N.R. CO. v. MORAN.

8 Div. 863

Supreme Court of Alabama

May 31, 1917

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Suit by Nina L. Moran, administratrix, etc., against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Gardner and Thomas, JJ., dissenting.

Eyster & Eyster, of Albany, for appellant.

Callahan & Harris, of Decatur, for appellee.

McCLELLAN J.

This is the second appeal of this case. L. & N.R.R. Co. v Moran, 190 Ala. 108, 66 So. 799. An ample statement of the facts and circumstances related to the death of plaintiff's (appellee's) intestate, W.J. Moran, is made in the opinion delivered on that appeal. There is no occasion or necessity to reproduce in detail much of these facts and circumstances to be found fully set forth in the former opinion. Moran's death was undoubtedly caused by his contact with some part of one or more of the coaches constituting the north-bound local train of the defendant, operated on November 27, 1911, between Birmingham and Decatur. On the former appeal it was expressly ruled, after most thorough consideration, that the trial court was in error in declining to give to the jury, at defendant's request, the general affirmative charge in defendant's favor as to count 4, in which the plaintiff relied upon a liability predicated of subsequent negligence on the part of defendant's employés operating that train. After all the evidence had been presented to the jury on the trial to review the judgment in which this appeal is prosecuted, the court, instructing the jury in writing, said to the jury, we presume at the instance of plaintiff, "Count 4 is excluded from your consideration," thus removing the count upon which this court on former appeal revised the judgment because of the error committed in refusing to the defendant the general affirmative charge. This elimination of count 4 left for possible submission to the jury only the issues tendered by the averments of count 1 as amended and the traverse thereof and the issues arising upon the averments contained in many pleas of contributory negligence.

Count 1, as originally filed, was as follows:

"(1) Plaintiff claims of the defendant the sum of $30,000 as damages for that, on, to wit, the 27th day of November, 1911, the defendant was a corporation owning or maintaining railroad tracks in New Decatur, Ala., over and along which it propelled trains of cars by means of steam. On said date in the nighttime plaintiff's intestate, W.J. Moran, was lawfully crossing defendant's said railroad track in New Decatur, Ala., and while crossing said track a train belonging to the defendant and operated by agents or servants of the defendant ran against and over plaintiff's intestate, crushing and mangling him, from which he then and there died. Plaintiff avers that the agents or servants of the defendant in charge of its said train so negligently managed or operated said train as to cause it, as an approximate consequence of such negligence, to, as aforesaid, run over and kill plaintiff's intestate, to her damage as aforesaid."

This count was amended by paper filed September 14, 1912, in this form and to this effect:

"Comes the plaintiff and before demurrer ruled on amends counts 1 and 2 by averring: The said place where the defendant was killed was a public crossing at or near the defendant's passenger depot in New Decatur, Ala., and the public character of said crossing was known to the agents or servants in charge of said train."

While the amended count does not so affirm, it was doubtless the pleader's purpose to introduce the amendment at the end of original count 1.

It is entirely clear that by positive, material allegations in count 1, original and as amended, the plaintiff restrictively described the conditions under which the alleged negligence of the defendant's agents or servants proximately caused Moran's injury and death. These conditions were described in these material averments:

"*** Plaintiff's intestate, W.J. Moran, was lawfully crossing defendant's said railroad track in New Decatur, Ala., and while crossing said track a train belonging to the defendant and operated by agents and servants of the defendant, ran against and over" Moran, causing his death.

It was necessary in a count of this type that any possible implication that Moran was at the time a trespasser upon defendant's track should be excluded by averments appropriate to the purpose. Gadsden Ry. Co. v. Julian, 133 Ala. 371, 32 So. 135, and C. of Ga. Ry. Co. v. Blackmon, 169 Ala. 304, 309, 53 So. 805, among others. The effect of the averments of amended count 1 was to charge simple negligence to the injury of one exercising the right to cross the defendant's railroad in New Decatur, and that while exercising this right a train of cars was negligently run against him, proximately causing his injury, thereby confining the negligence charged to some character of omission or misconduct in causing or permitting the train to collide with him, who was there in the exercise of the right stated. On this appeal the propriety (in one aspect) of the trial court's action in refusing the general charge for the defendant depends upon whether there was at the conclusion of the whole evidence any evidence or reasonable inference from evidence tending to show negligence on the part of defendant's servants proximately causing the injury of Moran in the particular circumstances charged in amended count 1, quoted above. There is no evidence that he was injured in consequence of a want of due care after discovery of his peril. The fullest possible consideration of this entire record and of the argument submitted by the respective counsel has been given by the members of the court. The proposition on which the former reversal was put was eliminated. The inquiry is now addressed to a different status of allegation, and of evidence as applicable thereto.

The ultimate question...