Louisville & N.R. Co. v. Holland

CourtSupreme Court of Alabama
Citation173 Ala. 675,55 So. 1001
Decision Date11 May 1911

55 So. 1001

173 Ala. 675


Supreme Court of Alabama

May 11, 1911

On Rehearing, June 27, 1911.

On Rehearing.

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

Action by W. T. Holland, as administrator, against the Louisville & Nashville Railroad Company, for damages for death of his intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

Count D is as follows: "The plaintiff, W. T. Holland, as administrator of the estate of Ranzy L. Holland, deceased, claims of the defendant, the Louisville & Nashville Railroad Company, a corporation, the sum of $25,000, for this: That, whereas, said defendant was, is now, and had been theretofore on, to wit, the 6th day of March, 1908, engaged in the business of operating a railroad in and through the town of Athens, county of Limestone, state of Alabama, for the transportation of persons and freight for hire; that on said day, to wit, the 6th day of March, 1908, plaintiff's intestate was in said town of Athens, Alabama; that plaintiff's said intestate fell asleep on or close to the railway track of defendant, and while thus asleep on or close to the railway track of defendant was struck by an engine or locomotive on the railway track of said defendant, and was so injured therefrom that, as a proximate consequence thereof, he died. And plaintiff avers that one of defendant's engineers, T. J. Douglass, who had charge or control of said locomotive or engine operated then and there on said railway track of defendant, and to which engine or locomotive cars were attached, after discovering that plaintiff's intestate was thus in a perilous position, and that plaintiff's said intestate was totally unconscious of said peril, the said engineer who thus saw the perilous position of plaintiff's intestate and the unconsciousness of his peril by plaintiff's said intestate in time to avoid injuring him by the proper use of appliances at his command, listlessly, inadvertently, or negligently failed to resort to the proper use of all preventive means at his hands in the conservation of the safety of plaintiff's said intestate, all to the great damage of plaintiff as aforesaid."

The demurrers raise the proposition that the complaint shows that plaintiff's intestate was guilty of contributory negligence, and nothing more than simple negligence is charged therein, and because count 3 is inconsistent, in that a part thereof is based upon the common-law liability and a part under the employer's liability act, and because said count is indefinite and uncertain in this: That it fails to show whether it is grounded on the common-law liability or the statutory liability of an employer.

The following charges were refused the defendant: (5) "Unless the jury believe from the evidence that after the actual discovery by the engineer that the deceased would not leave the track, and the conduct of the engineer was such as to show a reckless disregard for the life of Ranzy L. Holland, they must find for the defendant." (7) "If the jury believe from the evidence that the engineer, as soon as he discovered that the deceased would not leave the track in time to escape the injury, applied the brakes and emergency, and sounded the alarm signal, and if they further believe that the use of sand would not have prevented the injury, and that the engineer did all he could to stop the engine, they must find for the defendant." (8) "If the jury believe from the evidence that the engineer, after discovering that the deceased would not leave the track in time to escape the danger, immediately did all in his power to stop the engine, then they must find a verdict for the defendant." (G) "The failure to use sand by the engineer would not amount to negligence, creating liability in this case, unless you believe the use of the same would have prevented the injury." (P) "I charge you, gentlemen of the jury, that the use of the sand by the engineer could not, according to the evidence in this case, have operated to bring the train to a stop before it struck plaintiff's intestate." (Q) "I charge you, gentlemen of the jury, that under the uncontradicted evidence in this case the use of sand in connection with the other means adopted for bringing the train to a stop would not have operated to stop the train in time to avoid striking plaintiff's intestate." (S) "I charge you that in connection with all of the other evidence in this case bearing upon the question of the amount of the earnings of plaintiff's intestate, which were devoted to his personal expenses, you may look to the testimony of Mrs. Holland on the former trial that his earnings would not average more than $55 per month, and that it took about half of that amount for the support of plaintiff's intestate." (T) "I charge you in connection with all of the other evidence in this case bearing upon the question of the amount of the earnings of plaintiff's intestate, which were devoted to his personal expenses, you may look to the testimony of Mrs. Holland, the widow of plaintiff's intestate, on the former trial of this cause, and which former testimony she admitted upon this trial having given at that time, that the earnings of her said husband would not average more than $55 per month, and that it took about half of that for his support." (X) "You have the right to infer from the evidence in this case that the personal expenses of plaintiff were greater than $19.50 per month."

Sanders & Thach, for appellant.

W. R. Walker, for appellee.


A report of the former appeal of this cause may be found in 164 Ala. 73, 51 So. 365, 137 Am. St. Rep. 25.

After remandment, the plaintiff withdrew all of the counts theretofore in the pleading, and amended the complaint by adding counts A, B, C, and D. Count A was later withdrawn, and this action took out of the case the issues made by special pleas 2 to 7, inclusive, to that count only, leaving the general traverse of counts B, C, and D, as presenting the issues finally submitted to the jury. These counts (B, C, and D) proceed on the theory of misconduct or omission after discovery of intestate's peril; the first ascribing willfulness or wantonness to the servant in charge of the locomotive, in inflicting the fatal injury, and the last two imputing simple negligence to that servant in respect of his conduct after discovery of intestate's peril.

The only error assigned and argued in brief, as upon rulings on the pleading, complains against the overruling of the demurrer to count D. The point of criticism of the count is that it confuses, in averments, common-law and statutory liability. The objection is not well founded. The count avers no relationship of employment, existing at the time of injury, between intestate and defendant, and without such an averment, at least as a necessary inference from facts alleged, the essential basis for an appeal to the provisions of the employer's liability statute is wanting. There being no averment of relationship in employment, the count must be taken as undertaking to charge a breach of the common-law duty toward one, of whose peril defendant's servant had become aware. That terms aptly descriptive of the character of the negligence imputed and of the means of the injury, had the count been drawn under the liability statute, were employed in this count cannot control the construction of the count. It is the gravamen of the whole count, and not to the abstract meaning of descriptive terms employed, nor to their association, upon occasion, with statutory or other rights and remedies, that controls the nature and character of the cause of action declared on. The count is not uncertain or duplex in the particular upon which it is assailed.

The distance from intestate at which the engineer first discovered him in a position, dejected or recumbent, dangerously near or upon the track, was a controverted issue under the evidence, as was also the inquiry whether the engineer so omitted his duty, after becoming aware of intestate's peril, as to bring his conduct within the definitions approved by this court of wanton or willful misconduct resulting in injury. Whether the consciousness essential to render conduct or omission willful or wanton, as the cause of injury, was present upon the occasion must have been, as generally and of necessity, a matter of inference from pertinent facts and circumstances proven. In this case it was open to be found, from the tendencies of the evidence, that the engineer saw the intestate on or dangerously near the track ahead, and so, in a recumbent posture, indicative of obliviousness to the impending danger from the oncoming train; that the point at which the engineer became so aware was beyond that from which, as related to intestate, the locomotive and train could have been stopped by the employment, [55 So. 1005] promptly and in order, of the means provided and known to skillful men in his station; that these appliances were not so employed, since (evidently speaking) the train was not stopped within the distance some of the evidence tended to show it could have been brought to a stop; that to sand the track, through appliances afforded, is a supplementary aid to, if it does not itself facilitate, a quicker stop of a moving train; and that the sand was not used in this instance. Whether the engineer omitted or delayed doing his duty, and, if so, with a conscious disregard of the consequences of his omission or delay, in view of the peril in which he knew intestate was, could not have been pronounced by the court below without invading the jury's province. It is true he testified that all was done promptly and in order that could have been done to avert the injury; yet from other evidence it was reasonably open to be found that, though he knew of intestate's peril and saw his prostrate, apparently unconscious, posture in dangerous proximity to the...

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