Louisville & N.R. Co. v. Jenkins

• Decision Date: 18 May 1916
• Docket Number: 6 Div. 273
• Citation: 72 So. 68,196 Ala. 136
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. JENKINS.

72 So. 68

196 Ala. 136

LOUISVILLE & N.R. CO. v. JENKINS.

6 Div. 273

Supreme Court of Alabama

May 18, 1916

Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.

Action by J.C. Jenkins against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Act of April 18 1911 (Laws 1911, p. 449) § 6. Affirmed.

The facts sufficiently appear. The defendant objected to the following evidence and moved to exclude it: Dr. Hays testifying, said:

I believe I treated Jenkins for rupture last spring. I believe I remember him telling me it was bothering him some.

The following question was asked witness Buell:

"If an engine was running up along the railroad parallel with the public highway, and should meet a party traveling along that road going in an opposite direction meeting the engine, and the cylinder cocks were open, and steam escaping out on the road, how long would it take the engineer to cut off steam until the engine had passed the party?"

The following is charge 1 refused to defendant:

The court charges the jury that defendant had the right to use its track, and to make all the usual noises incident to the running and moving of trains; and, if you believe from the evidence that nothing but this was done by defendant's agents and servants, then even if plaintiff's mule did run away and hurt him, your verdict must be for defendant.

A.A Griffith, of Cullman, and Callahan & Harris, of Decatur, for appellant.

Geo. H Parker, of Cullman, and Eyster & Eyster, of New Decatur, for appellee.

THOMAS J.

The bill of exceptions is established in this cause pursuant to appellant's motion of that end. The case was tried on two counts of the complaint. The first count charges simple negligence on the part of defendant's agents or servants, acting within the scope of their employment, whilst engaged in the operation of one of defendant's trains, in that, while plaintiff was on a public highway a short distance north of Garden City, "the agents and servants of the defendant in charge of said locomotive so negligently conducted themselves in and about the operation and handling of said locomotive" that as a proximate consequence thereof plaintiff's mule was caused to run away, and so inflict plaintiff's injury. The second count alleges negligence on the part of defendant's agents and servants in and about the operation of said engine, leading to the result that plaintiff's mule became frightened and was caused to run away; and that as a proximate consequence of this negligence in the handling and operating of said locomotive plaintiff was caused to sustain the injuries complained of. The defendant pleaded not guilty, offered no evidence on the trial, and requested the affirmative charge which the court refused.

Where the plaintiff has introduced his evidence, and it does not tend to prove the cause of action, the court may refuse to hear the evidence of the defendant; but it is only in the absence of all evidence against the defendant that the court should direct a verdict. If there be any evidence which tends to establish the plaintiff's case, the court should not withdraw the cause from the jury. Tobler v. Pioneer M. & M. Co., 166 Ala. 517, 52 So. 86; McCormack Co. v. Lowe, 151 Ala. 313, 44 So. 47; M.J. & K.C.R.R. Co. v. Bromberg, 141 Ala. 258, 37 South 395; Shipp et al. v. Shelton, 69 South 102; Amerson v. Corona &c. Co., 69 So. 601; Holmes v. Bloch, 71 South 670.

If, as a continuing contributing cause, the negligent act of defendant's agent and servant, in the manner alleged in the complaint, proximately resulted in plaintiff's said injuries, a recovery may be had.

The plaintiff's evidence tended to show that as he was driving a mule to a buggy, southward along the public road to Garden City, the mule became frightened by a freight train approaching from the rear, and passing; that the mule was "jumping around," "getting scared," becoming "frightened," but witness was "managing to hold him in the road," when defendant's engine, coming from the south, met driver and mule in close proximity, "squirting" and puffing steam towards the road and mule, causing the mule to run away, and thereby inflict injuries on the plaintiff, among them a rupture--inguinal hernia. The evidence further shows that the public road along which plaintiff was traveling, and where the "runaway" occurred, was parallel with defendant's railroad and very close thereto, one of the two eyewitnesses indicating the distance between plaintiff and the ties by the expression, "there was just a ditch there, some few feet," and the other witness stating that the road was as close to the railroad track "as from here to the jury box, *** the public road comes pretty close to the railroad track, as close as from here to the spittoon," and stating that there was a high perpendicular wall on the west side of the public road, and the railroad on the east side of it, with barely a driveway along there.

The evidence as to the conduct of the defendant in the operation of the engine just before, and at the time of passing, as given by the witness, was that the engine was making noise, that steam puffing from around the cylinder, at the head of the engine, and coming out of the cylinder cocks, and puffing out towards the road as the engine approached Mr. Jenkins and the mule; that "the engineer could have seen him all right. It was a plain, open way. The public road runs right by the railroad, parallel, as close as from here to that spittoon."

On cross-examination one witness stated that the engine was working just steam enough to pull out of the switch, that it was puffing as it started, like it always does, and not making any unusual noise, and was "squirting steam out toward the road and toward the mule." And on further cross-examination this witness said that:

"The mule and engine met, just about the time the steam was puffing out, met, and the engine got a little above it, that is, past the mule about 20 yards, when it commenced to emit that steam."

The evidence showed that a man was on the west side of the engine, with his head out of the window, looking westward or northwestward; that there was nothing to obstruct his view to where plaintiff and the frightened mule were.

An experienced engineer testified to the effect that at the end of each cylinder of an engine, where the steam escapes, is what is called a "cylinder cock," on the bottom of the cylinder; from these there runs to the cab of the engine a rod by means of which the cocks may be instantly opened or closed; they are opened to let out of the cylinder the water condensed from the steam; and it is not essential to the operation of the engine to have the cylinder cocks open all the time for the escape of water and steam.

This court can hardly know, as did the trial court, how close to the engine Mr. Jenkins and his mule were, as was to be gathered from such expressions as, "from here to the jury box," "to the spittoon," etc. The indicated distances should have been given more specifically in the bill of exceptions. Such references to the locus in quo might involve a contradiction in a bill of exceptions reciting that it contains all the evidence. Ala. T.R.R. Co. v. Benns, 189 Ala. 590, 66 So. 589; Warble v. Sulzberger Co. of America, 185 Ala. 603, 64 So. 361; Sloss-Sheffield S. & I. Co. v. Redd, 6 Ala.App. 404, 60 So. 468; Continental Gin Co. v. Milbrat, 10 Ala.App. 351, 65 So. 424. However, as we have pointed out, these expressions of proximity to the engine (a very important fact under the allegations of each count) have some explanation in the description of the place with the perpendicular embankment on the west of the public road and the ditch and the railroad on the east side, and in the statement of the witness that:

"Between me and the ties (meaning, of course, the cross-ties of the railroad) there was just a ditch there--some few feet."

We will therefore consider the action of the trial court in declining to give the affirmative charge requested by defendant.

Did the defendant, under the circumstances of time, place, and the reasonable appearance of fright in the mule (if in fact defendant's agent operating the engine observed the fright) owe the duty to the plaintiff to so operate the engine as not to increase the panic, or as to allay the panic, of the animal, provided this could be done consistently with the due operation of the engine and train?

Mr. Wood, in his work on Railroads (volume 2, p. 324), thus states the general rule as to frightening teams:

"For an injury resulting from the frightening of a horse in the proper operation of a railway, no damages are recoverable; but when an engine is managed in such a reckless and negligent manner as to frighten horses, and cause them to run away, the company is liable for the consequences--as, where the engineer suddenly discharges a jet of steam near a passing team, or allows the steam to escape at a highway crossing, or near a highway, making a great noise, when teams are approaching, especially when it is necessary." Stamm v. Sou. R. Co., 1 Abb.N.C. (N.Y.) 438; Presby v. Grand Trunk R. Co., 66 N.H. 615, 22 A. 554; Louisville, etc., R. Co. v. Schmidt, 81 Ind. 264; Statt v. Grand Trunk, 24 U.C.C.P., 347; Gibson v. St. Louis, etc., R. Co., 8 Mo.App. 488; Indianapolis, etc., R. Co. v. Boettcher, 131 Ind. 82, 28 N.E. 551.

See also, Paine v. City of Rochester, 59 Hun, 627, 14 N.Y.Supp. 180; Keech v. Rome, etc., R. Co., 59 Hun, 617, 13 N.Y.Supp. 149; Harrell v. Albemarle, etc., R. Co., 110 N.C. 215, 14 S.E. 687; Culp v. Atchison, etc., R. Co., 17 Kan. 475; Wabash R. Co. v. Speer, 39 Ill.App. 599 (unnecessary use of whistle); Albee v. Chappaqua Mfg....