Louisville & N.R. Co. v. Maddox

• Decision Date: 20 January 1938
• Docket Number: 6 Div. 92.
• Citation: 236 Ala. 594,183 So. 849
• Parties: LOUISVILLE & N. R. CO. v. MADDOX ET AL.
• Court: Alabama Supreme Court

183 So. 849

236 Ala. 594

LOUISVILLE & N. R. CO. v. MADDOX ET AL.

6 Div. 92.

Supreme Court of Alabama

January 20, 1938

Rehearing Denied June 16, 1938.

Further Rehearing Denied Oct. 6, 1938.

Application for Further Rehearing Stricken Nov. 3, 1938.

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action under Homicide Act, Code 1923, § 5696, by Jeanette Montgomery Maddox and Bertha Montgomery Kitchens, as administratrices of the estate of Mary Elizabeth Montgomery, deceased, against the Louisville & Nashville Railroad Company and another. From a judgment for plaintiffs, the named defendant appeals.

Affirmed.

Chas H. Eyster, of Decatur, and Gibson & Gibson, of Birmingham for appellant.

W. H Sadler, Jr., of Birmingham, amicus curiæ, for appellant.

J. L. Drennen, of Birmingham, for appellees.

THOMAS Justice.

The suit was for damages and the judgment was for the plaintiff. There are many assignments of error, and the argument of counsel will, for convenience, be followed in such respects as may be practicable.

The trial was had on counts as amended to which demurrer had been overruled. The defendants pleaded the general issue, and in short by consent with leave to give in evidence any matter which being well pleaded would be admsisible in defense of the action.

It may be well to state several propositions of law which have been declared by this court, as illustrated in the general statements thereof found in the decisions now to be stated.

(1) Having assumed the position of a common carrier for hire of passengers, such common carrier is not an insurer of the safety and comfort of its passengers, its duties being to exercise the highest degree of care, skill, and diligence known to competent operators of railroad passenger trains to protect their passengers while boarding the train, in transit and alighting therefrom. Mosely v. Teche Lines, 232 Ala. 110, 166 So. 800; Ensley Holding Co. v. Kelly, 229 Ala. 650, 158 So. 896; Alabama Power Co. v. Maddox, 227 Ala. 628, 151 So. 575; Louisville & Nashville R. R. Co. v. Bowen, 212 Ala. 690, 103 So. 872; Central of Georgia Ry. Co. v. Robertson, 203 Ala. 358, 83 So. 102; Alabama Great Southern R. Co. v. Robinson, 183 Ala. 265, 62 So. 813; Birmingham Ry. Lt. & Pr. Co. v. Barrett, 179 Ala. 274, 60 So. 262; Irwin v. Louisville & Nashville R. R. Co., 161 Ala. 489, 50 So. 62, 135 Am.St.Rep. 153, 18 Ann. Cas. 772; Southern Ry. Co. v. Cunningham, 152 Ala. 147, 44 So. 658.

(2) Generally speaking, it is understood in the books that the proximate cause of an injury is the primary moving cause which, in the natural and probable sequence of events, and without the intervention of a new or independent cause, produces the injury. Louisville & Nashville R. R. Co. v. Courson, 234 Ala. 273, 174 So. 474; Alabama Power Co. v. Curry, 228 Ala. 444, 153 So. 634; Smith v. Alabama Water Service Co., 225 Ala. 510, 143 So. 893; International Harvester Co. v. Williams, 222 Ala. 589, 133 So. 270; Western Ry. of Ala. v. Mutch, Adm'r, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316, 38 Am.St.Rep. 179; Scott v. Shepherd, The Squib Case, 2 Wm.Bl. 892.

(3) Where the act and the injury are not known by common experience to be naturally and reasonably in sequence and the injury does not in the ordinary sequence of events and under the circumstances follow from the act, they have been held not sufficiently connected to make the act the proximate cause. Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277; City of Birmingham v. Latham, 230 Ala. 601, 162 So. 675; Alabama Utilities Co. v. Champion, 230 Ala. 263, 160 So. 346; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Id., 222 Ala. 120, 130 So. 807; Whitman v. Mobile & Ohio R. Co., 217 Ala. 70, 114 So. 912; Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90; Mobile & Ohio R. Co. v. Christian Moerlein Brewing Co., 146 Ala. 404, 41 So. 17; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 So. 349. And in Central of Georgia Ry. Co. v. Barnitz, 14 Ala.App. 354, 363, 70 So. 945, 949, it is declared that "the carrier, if its servant was guilty of negligence, should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed" would have "thought reasonably probable to follow." Id., 198 Ala. 156, 73 So. 471; Louisville & Nashville R. Co. v. Clark, 205 Ala. 152, 87 So. 676, 14 A.L.R. 695; Pollard v. Jarrett, 233 Ala. 77, 169 So. 697.

(4) Where one act creates a condition which is subsequently acted upon by another independent and distinct agency to produce the injury, the original act held the remote, and not the proximate, cause of the injury in Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Alabama Power Co. v. Cooper, 229 Ala. 318, 156 So. 854; Ruffin Coal & Trans. Co. v. Rich, 214 Ala. 633, 108 So. 596; Hammett v. Birmingham Ry. Lt. & Pr. Co., 202 Ala. 520, 81 So. 22; Garrett v. Louisville & Nashville R. R. Co., 196 Ala. 52, 71 So. 685; Tobler v. Pioneer Mfg. Co., 166 Ala. 482, 52 So. 86.

It is an insistence of the defendant that it was entitled to the general affirmative charge requested in writing. The admission of appellant's counsel is that it was to be inferred from the evidence that there was a failure of appellant's agent in charge of the loading or boarding of trains to have learned from the examinatioin of the intestate's ticket that it was not good on the train they were loading. It is further insisted that from this point onward, according to the evidence, the carrier conducted itself with due care; that the conductor informed the excursion passengers, one of whom was intestate, that "they should have to leave the Pan-American at Montgomery and there await the excursion train for which they held tickets"; and that such passengers, including intestate, alighted from the Pan-American at Montgomery without assistance and without mishap; that "when the excursion train," for which intestate had a ticket, "arrived a few minutes later, the intestate and her party left the waiting room, and in descending some steps from the waiting room, preparatory to boarding the excursion train, the intestate sustained her fall" and injury for which suit is brought.

The question then presented by the plea and the evidence is, Was the accident and injury to intestate reasonably to be apprehended in view of all the circumstances affecting her as a traveler, when her advanced age of eighty-one years and the fact that she was unattended in making the change of trains in Montgomery, required or made necessary by the acts of several of defendant's agents, are considered?

The situation is clearly stated in the complaint as amended in counts 1, 2, and 3.

It is well established by many decisions in this jurisdiction that persons who perpetrate torts are, as a rule, responsible for the consequences of the wrongs they commit. That is, unless the tort be the proximate cause of the injury complained of, there is no legal accountability. Western Railway of Alabama v. Mutch, Adm'r, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316, 38 Am.St.Rep. 179. The authorities are collected and digested in the more recent case of Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610, 622. See, also, Louisville & Nashville R. R. Co. v. Courson, 234 Ala. 273, 174 So. 474, 476.

In the case of Morgan Hill Paving Co. v. Fonville, supra, is found a quotation from Dr. Joseph H. Beale to the effect that "When one is responsible for the operation (a) of an active force which he has created; (b) of an active force which acts upon a passive force which he has created, or upon a passive force which he is legally bound to change. Each time one or more active causes operate on a condition to create a new condition, a new causal step is taken, ending with the given result." However this may be, it is recognized that the rule that obtains in this jurisdiction is passed upon and stated in Armstrong v. Montgomery Ry. Co., 123 Ala. 233, 26 So. 349. This rule has been recently repeated in the case of Morgan Hill Paving Co. v. Fonville, supra, and for convenience is restated here, as follows:

"[16] The question of proximate or remote cause is the consideration of active force or risk--the 'result of impression of active force upon a passive force, or of two or more active forces acting on each other.' There must be one active force, and may be two or more coexisting and co-operating forces to the same injurious effect, as its proximate cause. * * *

"[17] Under the rule that the court will trace an act into its proximate, but not into its remote, consequences, and tracing from result to cause, it will be noted that in fact there may be two or more concurrent and directly co-operative and efficient proximate causes of an injury. Beale in 33 Harvard Law Rev. p. 740. In Jones & Hooks v. Finch, 128 Ala. 217, 29 So. 182, Mr. Chief Justice McClellan observed that the evidence showed defendant negligently caused a wire to fall and remain on a trolley wire hanging into the street, and come in contact with plaintiff's animal, and that the 'phone wire became charged with the electrict current from the trolley; that the driver of the mule did not observe the suspended wire; held to recover, notwithstanding the negligence of the owner of the trolley wire in not providing fenders against the telephone wire was a conjunctive cause of the disaster. The Chief Justice said:

" '* * * The negligence of the defendants was an efficient proximate cause of the result complained of, and it is of no consequence that the negligence of the owner of the trolley wire in not providing fenders against the telephone wire was a conjunctive cause of the disaster.' "

The rule is further stated in ...