Louisville & N. R. Co. v. Banks

• Citation: 31 So. 573,132 Ala. 471
• Parties: LOUISVILLE & N. R. CO. v. BANKS.
• Decision Date: 10 February 1902
• Court: Alabama Supreme Court

31 So. 573

132 Ala. 471

LOUISVILLE & N. R. CO. v. BANKS.

Supreme Court of Alabama

February 10, 1902

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action by John T. Banks, as administrator of the estate of Joel Lawrence, deceased, against the Louisville & Nashville Railroad Company, for the wrongful death of plaintiff's intestate. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought by John T. Banks, as administrator of Joel Lawrence, deceased, against the Louisville & Nashville Railroad Company, to recover damages for the alleged negligent killing of the plaintiff's intestate, who was run against and killed by an engine operated on the defendant's road, and which was in charge of Engineer Ben McDermott. The complaint claimed $20,000 damages.

The defendant pleaded the general issue, and by special plea set up the contributory negligence of the plaintiff's intestate, and the cause was tried upon issue joined on these pleas.

Under the opinion on the present appeal, it is not necessary for an understanding that the facts of the case should be set out in detail.

Upon the examination of Dr. Murray, he testified that he was a physician and surgeon of 10 years' experience; that he was called to see Joel Lawrence after the accident, and found him in a dying condition; that there was an abrasion on his head near the right eye; that he did not examine his body, as he was in a dying condition, and he did not wish to disturb him. The witness further testified that "Lawrence's forehead was bruised and had a scraped appearance. If he had been struck by a sloping tender of the engine, running six miles an hour, I don't think a blow of that kind would have caused the injury he received." Upon being asked if he had been dragged 60 feet, would such an injury have been caused? the witness answered that simply dragging would not have caused the injury unless Lawrence had been compressed. During the further examination of the witness he was asked the following question: "I will ask you to state if a man of Joe Lawrence's size had been run against with an engine, and knocked down, or fell down, and dragged along by a footboard six inches from the ground, and got behind that footboard, and had been dragged, if that sort of treatment would have caused this sort of injury?" The defendant objected to this question, because there was no proof of its being the manner in which the injury was received, and because it was immaterial and irrelevant. The court overruled the objection, and the defendant duly excepted.

The court at the request of the plaintiff, among others, gave to the jury the following written charges, to the giving of each of which the defendant separately excepted: (c) "If you believe from the evidence that Ben McDermott, after he saw the peril of Lawrence, if he so saw it, listlessly and inadvertently and negligently failed to resort to the proper use of all preventive means at his command to save Lawrence from injury, you must find for the plaintiff, unless you further find that Lawrence, after he became conscious of his danger was not free from negligence in attempting to save himself from injury." (h) "Lawrence had a right to presume that McDermott would obey the rules of the company."

There were verdict and judgment for the plaintiff, assessing his damages at $5,740. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Thos G. & Chas. P. Jones and J. M. Falkner, for appellant.

W. W Callahan and E. W. Godbey, for respondent.

HARALSON J.

1. The case though simple as to the real facts, is distressingly cumbered with pleadings, covering some 55 pages of the transcript. Nearly everything attempted was demurred to on both sides, and after all, there was no judgment on any of the demurrers to the counts of the complaint, to the pleas or replications. We have a case presented, therefore, where we must ascertain on what definite issues it was really tried.

2. The real facts stated concisely are, that Lawrence, the deceased was an employé in the defendant's yard at Decatur or New Decatur, whose business it was to make up trains; that one Ben McDermott was the engineer in charge of the engine and tender which ran against deceased; that there were in the yard, the main track and some seven other side or switch tracks on the west side of the main track; that deceased was standing a very few feet on the east of the main track, with a switch list in his hand, at the time McDermott was coming south down the main line with his engine and tender attached, the tender running foremost, moving at the rate of some six miles an hour, and that deceased,--as McDermott testified,--when the tender was in three or four feet of him, made a movement from the place at which he was standing, which was a safe one, towards the track down which the engine and tender were coming, and ran and jumped on the track; was knocked down or fell, was caught under the tender and rolled some distance down the track. When taken out, as other evidence shows, he was so badly injured, he died soon afterwards.

The theory of the complaint is, that the death was not caused by knocking deceased down, for as contended, his death was not caused by that act, but came from his afterwards being rolled over or pushed along the track by the moving tender; that the engineer discovered his peril but failed to reverse his engine, sand the track and apply the brakes soon enough before deceased was knocked down but not killed, and by reason of such failure, and a failure to use preventive means afterwards, the deceased was dragged and fatally injured.

The complaint sets out in variant forms in many counts, the negligence of the defendant's engineer, in his failure to do and observe this, that and the other alleged duty, whereby the injury resulted; and the pleas, in extended form, set up the negligence of the deceased in leaving a place of safety and going upon the main track in the face of peril to his life, in consequence of which he contributed proximately to his own destruction.

The plaintiff, first denying the allegations of these pleas, replied specially: (2) "After said deceased, was by those on the engine observed on the track, those in charge of the engine, failed to use all proper means to stop the engine, and by reason of such failure, the said Joe Lawrence met his death." The third, fourth and fifth replications to the pleas were demurred to, and as appears by a shorthand rendering, these demurrers were sustained. The demurrers must therefore be treated as waived. As to these replications it may be said, they were of no significance in the trial of the cause and no notice of them may be here taken, since all the matters set up in them were fully gone over in the evidence introduced.

The sixth replication, upon which much stress is laid, was, that "the said engineer after discovering the peril of said Lawrence, failed to reverse the engine, sand the track and apply the brakes until the said Lawrence was knocked down but not killed, and by reason of such failure, the said Lawrence was dragged and fatally injured." These two replications (the second and sixth) treat of no more than simple negligence.

The defendant, joining issue on the second replication, rejoined specially to the sixth, "that when plaintiff's intestate stepped upon the track, and between the rails of the track on which said engine was, said engine was so close to said Lawrence, that defendant's engineer could not stop the same by any appliances within his power in time to avoid hitting said Lawrence." The plaintiff moved to strike this last rejoinder which was granted, but the ruling is shown only in the judgment entry and not in the bill of exceptions, and there is no formal judgment rendered, as shown, on the motion.

The eighth, tenth, eleventh and twelfth counts in the complaint were framed to set up wantonness on the part of the engineer in causing the death of the plaintiff's intestate. They were demurred to on many grounds questioning their sufficiency, but as no judgment was rendered on the demurrers, they must be treated as waived. We have then several counts setting up simple negligence, and these four, intended to set up wantonness on the part of the engineer in inflicting the injury on deceased. We have heretofore attempted to make plain the necessary averments of wantonness or willfulness, or reckless indifference to probable consequences, with a knowledge and present consciousness that the injury would probably result. In Railroad Co. v. Burgess, 119 Ala. 563, 25 So. 254, we said: "Of course, an intent to injure on the part of defendant's employés is not essential to liability, notwithstanding contributory negligence. It is enough if they exhibit such wantonness and recklessness as to probable consequences as implies a willingness to inflict injury, or an indifference as to whether injury is inflicted, though they may not have any such affirmative purpose." Electric Co. v. Pinckard, 124 Ala. 372, 26 So. 880. Again, to make the matter plainer, if possible, it was said in the late case of Railroad Co. v. Brown, 121 Ala. 226, 25 So. 611: "To the implication of willfulness, or wantonness, or reckless indifference to probable consequences, it is essential that the act done or omitted should be done or omitted with a knowledge and a present consciousness that the injury would probably result; and that this consciousness is not to be implied from mere knowledge of the elements of the dangerous situation, for this the party charged may have and yet act only negligently and inadvertently in respect of the peril, but it must be alleged, either in terms, that he...