Louisville & N.R. Co. v. Cornelius

• Citation: 60 So. 740,6 Ala.App. 386
• Parties: LOUISVILLE & N. R. CO. v. CORNELIUS.
• Decision Date: 19 November 1912
• Court: Alabama Court of Appeals

60 So. 740

6 Ala.App. 386

LOUISVILLE & N. R. CO. v. CORNELIUS.

Court of Appeals of Alabama

November 19, 1912

Appeal from Circuit Court, Jefferson County; E. C. Crow, Judge.

Action by W. F. Cornelius against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Charge 5, given at the request of appellant: "The court charges the jury that, unless you believe from the evidence that plaintiff was carried by defendant's station willfully or intentionally, or under circumstances of aggravation, then you cannot award the plaintiff any damages for the purpose of punishing the defendant."

Charge 11 is as follows: "The court charges the jury that under the evidence in this case, defendant was under no duty to back its train to Gracies and let plaintiff off at that point."

Tillman Bradley & Morrow and Frank M. Dominick, all of Birmingham for appellant.

Black & Davis, of Birmingham, for appellee.

PER CURIAM.

It is said that 65 per cent. of the cases now pending in the states of the Union are damage suits. This situation is due to the rapid development of our natural resources, and the constant demand for rapid freight and passenger transportation. As the conditions out of which such litigation naturally springs constantly increase, it is but natural that litigation growing out of such conditions should correspondingly increase. The more passengers and the more common carriers we have, the more chances we have that some passengers will be injured if the servants of common carriers are neglectful of their duties; and, the greater the number of servants which a public service corporation has in its employ, the greater the possibility that some of such servants will be neglectful of their duties, and by reason thereof fellow servants or members of the public suffer injuries.

Out of respect to the above situation--as a large percentage of appeals from the judgment of trial courts in such cases come within the jurisdiction of this court--we undertook, in the case of Birmingham Water Works Co. v. Martini, 2 Ala App. 652, 56 So. 830, to define and explain the office of a special action of trespass on the case and to declare what, as actual damages, was recoverable in such action. As the question as to when and why exemplary damages may be allowed in such actions was also constantly recurring in this court in the case of Birmingham Water Works Co. v. Keiley, 2 Ala. App. 629, 56 So. 838, we undertook to declare the true rule which should govern all courts when, in such an action, the plaintiff claims such damages of the defendant. The above cases, when read together, will, we think, fully illustrate our views as to the law upon the above subjects. See, also, B. R. L. & P. Co. v. Murphy, 2 Ala. App. 588, 56 So. 817; Bigbee Fertilizer Co. v. Scott, 3 Ala. App. 333, 56 So. 834.

1. There were several counts to the complaint in this case, and there was a demurrer, with many grounds, to each count of the complaint. The action of the trial court in overruling the defendant's demurrer to each count of the complaint is separately assigned on this record as error, and these assignments of error are pressed upon us for our attention. There were also during the trial, several exceptions reserved by appellant to the action of the trial court in its rulings on the admission or rejection of evidence, and these rulings are also assigned as error, and they, too, are pressed upon us for our attention. The facts of this case, however, are extremely simple, and we devote ourselves to a discussion of the merits of the case.

It does not matter how skillfully a plaintiff may state, in his complaint, a cause of action for simple negligence against a defendant, he can recover nothing for such negligence, unless, when the trial is had, he offers some evidence of the negligence charged in the complaint, and that the plaintiff was injured by such negligence. It does not matter in what terms, in his complaint, a plaintiff claims of a defendant, in such an action, exemplary damages, he can recover nothing, if he fails to offer some evidence from which a reasonable inference can be drawn that the wrong complained of was perpetrated under such circumstances as would justify a jury, within their discretion, in awarding exemplary damages.

In such a case, regardless of the allegations of the complaint, the subject of exemplary damages, in the absence of any evidence authorizing their imposition, should not be submitted to the jury. It is a familiar proposition that, when a defendant is charged with murder, malice may be presumed from the use by the defendant of a deadly weapon in the commission of the homicide, unless the circumstances attending the use of the weapon rebut the idea of malice. And so, in cases like the present, when the plaintiff's own evidence, if accepted as true, shows that the negligence complained of was an act of simple negligence only, and all the other facts and circumstances of the case rebut any other theory, then certainly, in such a case, the trial court should not submit the subject of exemplary damages to the jury.

2. The facts in this case are that on the 26th day of December, 1909, the appellee (plaintiff in the court below), with his wife and baby, boarded appellant's (defendant's in the court below) train at Pelham for Gracies. Gracies appears to be a small station on appellant's railroad, and it further appears that appellee's home, at that time, was on a public highway about five miles from Gracies. His home seems only to have been three miles from Birmingham; but, in going to his home from Birmingham, it was necessary to cross a mountain. The night was cold, and there was a high wind. Appellee's baggage consisted of a valise. Before leaving Pelham for Gracies, appellee had arranged with his brother to have a conveyance at Gracies on the arrival of the train to convey him and his wife and baby to their home. The conveyance was at Gracies when appellee's train reached that point; but, according to appellee's evidence, the train, when it reached Gracies, did not stop there for a length of time sufficient for appellee, incumbered as he was with a valise, a baby, and a wife, by the exercise of reasonable diligence, to get off the train before it left. On this subject, the evidence was in dispute; but there is no dispute about the fact that appellee, his wife, and his baby were on the train when it left Gracies; that Gracies was five miles from Birmingham; that the train, after it left Gracies, did not stop until it reached Birmingham; that, when the train reached Birmingham, appellee, his wife, and baby alighted from the train; that they caught a street car at or near appellant's station, which carried them about a mile in the direction of their home; that the appellee and his wife walked from that point, across the mountain, carrying the baby and the valise with them to their home; that appellee, to protect the baby from the cold and the wind, took off his coat and wrapped the baby in it; that appellee caught a severe cold and suffered physical discomfort; and that, shortly before reaching his home, the party stopped at the home of a neighbor, where a fire was made for them. Appellee's evidence further tended to show that the train reached Birmingham in the night; that he was unable to find lodging in the city or a conveyance to carry him to his home; and that, for that reason, he walked home as above stated.

On the subject as to what occurred when the train reached Gracies and after it left that point, we quote the following from the testimony of appellee: "The train stopped at Gracies what might be called a quarter of a minute, something like that. I started to get off. I made preparations before the train stopped, and told my wife to have the baby ready. The baby is one year old. When the train stopped, I had started before the train stopped, and we made our start for the front of the car, and it was crowded between the front of the car and not so badly crowded at the back; but the door at the back was locked, and we made our way out the front of the car where the others had got off at the other stops before. We got something like between five and six seats, maybe three seats or five, I did not pay any particular attention to it, before the train started. That was something like two-thirds of our way to the door. When the train started, I kept pushing my way to the front of the train until I saw the train had its sway in moving, and then I told my wife to go back and sit down, and I placed my grips down and went to hunt the conductor and flagman. I did not find them. They were not at the end of the coach when I went to find them. In something like a minute and a half, maybe two minutes, I found the flagman. He had come across from the other coach, from the coach along ahead to the coach at the rear end. I said to him, 'Why didn't you stop long enough for us to alight at Gracies?' He said that he did. I told him he did not stop long enough for us, my wife and baby, to get off. I said, 'I had my conveyance at that place to get off, and I asked him if he could carry us back, and he said he couldn't.' There was nothing else said between us. We came on to Birmingham. When I asked him to go back, he said he couldn't go back. I explained to him why I wanted to go back. I told him I had my wife and baby, and had a conveyance at Gracies for us to go home, and it would be inconvenient for us to get out of town, out of Birmingham. I did not tell him how far I lived from Birmingham. * * * The man I was talking to was the flagman. The conductor was a different man from the flagman. * * * The station was called out before the train got there. I heard it called. It...