Louisville & N.R. Co. v. Fleming

• Decision Date: 15 April 1915
• Docket Number: 791
• Citation: 194 Ala. 51,69 So. 125
• Parties: LOUISVILLE & N.R. CO. v. FLEMING.
• Court: Alabama Supreme Court

69 So. 125

194 Ala. 51

LOUISVILLE & N.R. CO. v. FLEMING.

No. 791

Supreme Court of Alabama

April 15, 1915

Rehearing Denied May 20, 1915

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

Action by R.G. Fleming, administrator, against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The facts and pleadings sufficiently appear. The following charges were refused to defendant:

(16) Even though you are reasonably satisfied from the evidence that it was Fleming's duty to break in or test engines, yet I charge you that the said Fleming could so conduct himself in the performance of said duties as to be outside the scope of his employment, and defendant would not be liable for injuries received by him while so acting outside the scope of his employment.

(21) If, from the evidence, you believe that defendant had in force and effect the following rule at the time intestate was injured: "Within yard limits, movements on double tracks against the current of traffic will be made under protection"--and intestate had knowledge of said rule and was running engine 183 fifty or sixty miles per hour against the currrent of traffic at the time of the injury without protection or assurance of protection from an agent of defendant, then I charge you that intestate assumed the risk of any injury he received from such an operation of engine 183.

(33) Where the duties of the servant in certain circumstances are particularly specified in unambiguous and reasonable rules of the master, of which he has knowledge, and to which he has assented, and of which he was aware, if you believe the evidence in this case, his non-observance or disobedience of them at a time when they are capable of observance is negligence on his part, as a matter of law; and if you believe from all the evidence that his non-observance of his duties, as defined by the rules of defendant at the time he was injured, was the proximate cause of his injury and death without negligence on defendant's part, your verdict should be for defendant.

(53) If you believe from the evidence that defendant had in force and effect the following rule: "Trains must approach yard limit under control and run carefully through the limits, expecting to find the main track occupied"--and that said rule was known to intestate, and if you further believe from the evidence that intestate was running engine 183 fifty or sixty miles an hour within the yard limits on the main track, and at the time of the injury, then I charge you that intestate assumed the risk of running said engine at said rate of speed.

Charge 54 bases a verdict for defendant upon the same hypothesis as 53, if said rule was reasonable.

The following is charge B given for plaintiff:

Under the evidence in this case, Fleming was acting within the scope of his employment as engineer on engine 183 at the time of the collision.

Eyster & Eyster, of New Decatur, for appellant.

Callahan & Harris, of Decatur, for appellee.

SAYRE J.

Action by appellee, as administrator, to recover damages for the death of his intestate, Houston Fleming, under the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65, and the amendatory act of April 5, 1910, c. 143, 36 Stat. 291 [U.S.Comp.St. 2913, §§ 8657-8665]. Plaintiff's intestate came to his death in July, 1912. The case went to the jury on counts 1, 2, as amended, and A. In each of these counts plaintiff sued for the use of the father and mother of his intestate, who was an unmarried man. In counts 1 and 2 the damage alleged to have resulted in consequence of the negligence of defendant's agents or employés is comprehended in the simple averment that the death of plaintiff's intestate was thereby caused. In count A the allegation in this respect is that, by reason of the negligence complained of, the locomotive engine upon which plaintiff's intestate was at work was overturned "pinning plaintiff's intestate thereunder, and for several hours thereafter plaintiff's said intestate lay mangled and mashed under said engine, from which he suffered great and excruciating mental and physical pain."

For convenience of statement putting aside amended count 2, as not materially different from count 1, it appears that counts 1 and A state different liabilities under the act of 1908, supra. One seeks to recover the pecuniary loss suffered by the surviving father and mother of deceased by reason of his death; the other seeks to recover the damages suffered by the deceased. These are declared by the Supreme Court of the United States in Michigan Central v. Vreeland, 227 U.S. 59, 33 Sup.Ct. 192, 57 L.Ed. 417, 33 Ann.Cas.1914C, 176, to be two distinct and independent liabilities, and unquestionably they are so. Under the act of 1908 it was settled that the cause of action stated in count A did not survive to personal representatives. 33 Ann.Cas. ubi supra. But section 9 of the amendatory act of 1910 (U.S.Comp.St.1913, § 8665) provided:

"That any right of action given by this act to a person suffering injury shall survive to his *** personal representative, for the benefit of the surviving widow or husband and children of such employé, and, if none, then of such employé's parents; and, if none, then of the next of kin dependent upon such employé, but in such cases there shall be only one recovery for the same injury."

By virtue of this section plaintiff claimed, in count A, the right to recover damages on account of the mental and physical pain suffered by his intestate. A recovery on that account was allowed in the trial court, and much of appellant's argument is addressed to the proposition that this was error necessitating a reversal. This argument, is based upon 22 assignments of error which relate to rulings on evidence and charges given and refused, whereby the trial court held that under count A plaintiff might recover for the pain and anguish suffered by intestate; and clearly, if that count was properly before the jury, there was no error in these rulings. The real question involved in this connection was whether the two counts could be joined; but defendant made no issue as to that in the court below either by objection to the joinder or by motion to require an election, and the question cannot be raised now for the first time on appeal. Appellant has cited to this point, among other cases, some in which the death of the employé was instantaneous.

It may be that in such case the only maintainable suit is on the cause of action given for the benefit of defendants, as alleged in count 1, since, if death is coinstantaneous with injury, there is no appreciable time in which the deceased has a right of action, and there is nothing to survive. Here it is not disputed that deceased survived his injury and suffered for four or five hours.

It was proper for plaintiff to make proof of facts as a basis for the admeasurement of the pecuniary loss alleged to have been suffered by the father and mother of deceased, and claimed in count 1 of the complaint, and, as data for that purpose, evidence of the age, probable duration of life, habits of industry, means, earnings, health, skill, intelligence, and character of the deceased, his reasonable future expectations, and other like facts, was admissible. James v. Richmond & Danville, 92 Ala. 231, 236, 9 So. 335; Norfolk & Western v. Holbrook, 235 U.S. 625, 35 Sup.Or. 143, 59 L.Ed. 392.

At this point we consider two assignments based upon the court's oral charge. After stating the jury's right to look to facts of the sort just above stated in determining the amount of compensation, if any, to be awarded to plaintiff for the use of the father and mother as dependents, the court said to the jury:

"In connection with the above, it may be proper to state that a proper measure of damages in this case, under counts 1 and 2, as amended, is the present worth of the amount which it is reasonably probable the deceased would have contributed to the support of his parents during the

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