Louisville & N.R. Co. v. Hall

• Decision Date: 18 November 1890
• Citation: 8 So. 371,91 Ala. 112
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. HALL.

8 So. 371

91 Ala. 112

LOUISVILLE & N. R. CO. v. HALL.

Supreme Court of Alabama

November 18, 1890

Appeal from city court of Mobile; O. J. SEMMES, Judge.

Action by Wallace G. Hall against the Louisville & Nashville Railroad Company for personal injuries caused by a low bridge, which spanned the road-bed of the defendant line of railroad. This is the second appeal of this case to this court. The facts, as they appeared on the second trial in the court below, upon the remandment of the cause, were in all respects substantially the same as on the former trial; and special reference is here made to the report of this case on first appeal, as found in 6 South. Rep. 277, and 87 Ala. 708.

On the introduction of the depositions of several witnesses, among the number being one Metcalfe, general manager of the Louisville & Nashville Railroad Company, and one Whitcombe the plaintiff offered to introduce in evidence certain letters written by said Metcalfe to said Whitcombe, as a general manager of a railroad company, and Whitcombe's reply thereto, and also letters from the attorneys of the plaintiff and defendant, in reference to the use of whipping-straps, or other means of warning at low bridges in use by well-regulated railroads, the defendant objected; but the court overruled the objection, allowed the same to be introduced, and the defendant thereupon duly excepted. The court charged the jury, among other things, as follows, after stating that it would be the duty of defendant to give, or cause to be given, to its employes due notice of the danger from low bridges: "No. 1. And to make use of such means as prudent persons engaged in the same or a like business would employ, and if the defendant did not give such notice to the plaintiff, or cause the same to be done, this would be negligence on the part of the defendant." The defendant objected to this portion of the said general charge, and excepted specially to it. Thereupon the court stated orally to the jury that they should consider the said portion of said charge excepted to as if the word "ordinarily" were written before the word "employ." The defendant also expected to the following portion of the general charge of the court: "No. 2. The plaintiff could not recover unless you find that prudent persons engaged in the same or a like business would, under the same or like circumstances, have made use of whipping-straps or other devices to notify brakemen of danger, in which event you should find for the plaintiff." Upon the defendant excepting to this portion of the general charge, the court stated orally to the jury that they should consider this portion of said charge excepted to, as if the word "ordinarily" were written after the words "business would," and the defendant excepted to that portion of said charge given with said qualification and instructions as stated by the court; and also excepted to charge No. 1, given with said qualification. At the request of the plaintiff, the court gave the jury the following written charge, among others: "(1) To determine whether a plaintiff is guilty of contributory negligence or not, the jury must look to the evidence to see what was his knowledge if any, of the fact of his danger; whether such knowledge, if he had it, was such as to have made him guilty of culpable negligence, in not avoiding the danger from the bridge, and whether he obtained his knowledge, if he did obtain it, in time and under such circumstances as to have enabled him, by the exercise of due care, to have averted or prevented his danger." The defendant reserved an exception to this charge given by the court at the request of the plaintiff and also severally and separately excepted to each of the other charges asked by the plaintiff, and given by the court. The defendant, among many other charges, requested the court to give the following: "(24) The court charges the jury that if the jury shall believe from the evidence that plaintiff was expressly notified previous to the injury by the conductor or trainmen that there were low bridges upon the line of said road, and that there was a low bridge at Greenville, the plaintiff cannot complain that his attention was never called to any bulletin, or written or printed notice, setting forth the fact that there were such low bridges on said line, the purpose of said bulletin or printed notices being fully carried out by such verbal notice." The court refused to give each and all the charges requested by the defendant, and the defendant thereupon duly excepted to the refusal to give this one, and each one of the others asked severally and separately. There was judgment for plaintiff in the sum of $18,000, and defendant appeals.

Gaylord B. & Francis B. Clark, for appellant.

G. L. & H. T. Smith, for appellee.

STONE C.J.

When this case was before us on a former term, (87 Ala. 708, 6 South. Rep. 277,) we ruled on demurrers to the several counts of the complaint, and pointed out defects in each one of them. The imperfections in several of them were slight. When the case returned to the city court, the first, sixth, and ninth counts were so amended as to conform to our views. Demurrers were interposed to the amended counts, reassigning many of the grounds assigned to the originals, and adding new ones. These demurrers were overruled, and we think rightly. Each of these counts, as amended, presents a prima facie cause of action within the rules of pleading which prevail in this state. Very great technicality is not required with us. Certainty to a common intent is enough.

The plaintiff, under leave of the court, added four new counts to his complaint. These were severally demurred to, and the court held the twelfth and thirteenth counts to be sufficient. For the reasons stated above, we hold each of these counts good. Appellant's criticism of count 13 does not take in its whole scope. It contains this averment: "But defendant, after it obtained the management and control of said railroad, negligently failed to maintain such whipping-straps or gallows and ropes, or other devices, although they were an effective and proper means of giving warning to defendant's freight brakemen, and other employes upon its freight trains, of their approach to said bridge, and negligently allowed the same to rot down, or be removed, and negligently failed to provide any other sufficient means of informing said brakemen of their approach to said bridge, although it knew said bridge was of a height to be dangerous to such freight brakemen, unless provided with whipping-straps, gallows, and ropes or some other similar and effective device, or would have known thereof by the exercise of reasonable diligence." This is an averment that whipping-straps, if maintained, would have been an effective and proper means of giving warning of the approaching peril, and that neither that nor any other means was employed for that purpose. This, as an averment, is sufficient.

To counts 12 and 13, the defendant, among other defenses, pleaded that the injury therein complained of did not occur within 12 months before the filing of said additional counts. This plea was demurred to, the ground alleged being that neither of them presented any new cause of action. This demurrer ought to have been sustained, but the record fails to show any ruling on it.

The fifth count of the complaint alleges, as a breach of duty by the defendant, the failure of the engineer to blow the whistle or ring the bell on the train, as by section 1144 of the Code he was required to do, "before reaching any public road crossing." This was assigned as a special ground of demurrer; and, inasmuch as the city court overruled the demurrer to this count, it must have held this ground of demurrer insufficient. On the former hearing of this case (87 Ala. 708, 718, 6 South. Rep. 277) we ruled that this case does not fall within the provisions of that statutory requirement. We said: "Its [the statute's] design was to warn and protect persons who, at a public crossing, pass across and directly on the track, and who would be in danger of being struck and run over by an approaching train." It is contended before us that the city court erred in not sustaining the demurrer to this part of the fifth count. It is a general rule that a demurrer to a part of a count will not be entertained, unless the imperfect part is so material as that, being eliminated, it leaves the count without a valid case of action. A seeming exception is recognized when the suit is on a penal bond, with more than one assignment of breach. In such action each breach is treated as a separate charge or count, and may be demurred to separately. Hays v. Anderson, 57 Ala. 374; Copeland v. Cunningham, 63 Ala. 394; Flournoy v. Lyon, 70 Ala. 308. The present suit does not fall within that class. The clause objected to is only one of several alleged, cumulative acts of negligence, and, if it be stricken out, the count will remain amply good. Security against the possible injurious effects a defendant may suffer from such irrelevant averment must be sought in a proper instruction to the jury. Demurrer cannot reach it. Possibly it should be stricken out as immaterial and impertinent, if moved for. Railway Co. v. Bridges, 86 Ala. 448, 5 South. Rep. 864. We find no error in the rulings on the pleadings.

The plaintiff propounded to defendant interrogatories for discovery, as provided by our statute. Code 1886, § 2816 et seq. Defendant objected to these interrogatories, and moved to suppress them and also the answers to them. The court sustained this motion in part, and overruled it in part. The ruling of the court in permitting any of the testimony so obtained to go to the jury is assigned as error. This exception is not pressed in the argument...