Louisville & N.R. Co. v. Davis

• Decision Date: 17 February 1938
• Docket Number: 6 Div. 140.
• Parties: LOUISVILLE & N. R. CO. ET AL. v. DAVIS.
• Court: Alabama Supreme Court

181 So. 695

236 Ala. 191

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

6 Div. 140.

Supreme Court of Alabama

February 17, 1938

Rehearing Denied May 26, 1938.

Appeal from Circuit Court, Jefferson County, Bessemer Division Gardner Goodwyn, Judge.

Suit for damages under Homicide Act by Helen Davis, as administratrix of the estate of Marion Davis, deceased against Louisville & Nashville Railroad Company, A. B Luster, and Will Williams. From a judgment for plaintiff defendants appeal.

Affirmed conditionally.

A verdict for death of husband who was struck by train was reduced to $6,000 where manner of death was largely speculative and trial court indicated that accident was at least in large part due to carelessness of decedent. Code 1923, §§ 5696, 6150, 9955.

The complaint is as follows:

"Count 1. The Plaintiff, Mrs. Helen Davis, who sues as Administratrix of the Estate of Marion Davis, deceased, claims of the defendants $50,000.00, as damages, for that heretofore, on to-wit, the 11th day of October, 1934, the plaintiff's intestate, Marion Davis, deceased, was on or upon 32nd Street, which was a public highway in Bessemer, Jefferson County, Alabama, and at a place on said public highway where said public highway crosses the railroad tracks of the defendant, Louisville & Nashville Railroad Company, a Corporation, the same being a public road crossing at said place, and at said time and place a locomotive engine or train controlled or operated by the defendants was caused to collide with the plaintiff's intestate, Marion Davis, Deceased, who was thereby killed.

"And plaintiff alleges that her said intestate, Marion Davis, Deceased, who was plaintiff's husband, was so killed as the proximate consequence of the negligence of the defendants, in that the defendants negligently caused said locomotive engine or train to collide with the plaintiff's said intestate and killed him at the time and place aforesaid."

The following charges were refused to defendant:

"20. Although the statute places on the railroad company the burden of acquitting itself of negligence for an injury happening at a crossing, yet I charge you that the statute does not place such burden on an individual and where the suit is jointly against the railroad and an employe or employes, as in this case, the burden of proving negligence on the part of the defendants proximately causing the injury is upon the plaintiff.

"21. Even though you should be satisfied from the evidence that defendants were guilty of negligence, yet if you are also reasonably satisfied from the evidence that Marion Davis was also guilty of negligence as alleged in any one or more of defendant's special pleas and that such negligence of Davis proximately contributed in the slightest degree to his injury and death, you cannot return a verdict for plaintiff."

"35. Although the statute places on the railroad company the burden of acquitting itself of negligence for an injury happening at a crossing, yet I charge you that the statute does not place such burden on an individual and where the suit is jointly against the railroad and an agent as in this case, the burden of proving negligence on the part of the individual defendants proximately causing the injury is upon the plaintiff."

Assignment 108 is predicated upon the following excerpt from the oral charge:

"If you should find for the plaintiff against less than all of the defendants, then the law requires that you state in your verdict which of the defendants you find your verdict against, and which you find in favor of. And in that instance your verdict should read:

"We, the jury, find for the plaintiff against the defendant, or defendants, so and so, stating such defendant or defendants that you find against, and assess the damages at * * * so much, you stating the amount of the damages, and then your verdict would go further and say: And we find in favor of defendant, or defendants, as the case might be, so and so, naming such defendant or defendants that you find in favor of."

The following charge (assignment 21) was refused to defendants: "If you are reasonably satisfied from the evidence that plaintiff's intestate was guilty of the slightest negligence, either in going upon or remaining in a dangerous position upon a public railroad crossing, on the occasion complained of, which contributed in the slightest degree to cause his death, you cannot find for the plaintiff."

Chas. H. Eyster, of Decatur, Huey & Welch, of Bessemer, and White E. Gibson, of Birmingham, for appellants.

F. F. Windham, of Tuscaloosa, Ewing & Perrine and Sam C. Pointer, all of Birmingham, and Lipscomb & Lipscomb, of Bessemer, for appellee.

GARDNER Justice.

This action is under our homicide statute (section 5696, Code 1923), and no question presented on former appeal is of controlling interest here. Davis v. Louisville & Nashville R. R. Co., 232 Ala. 382, 168 So. 449.

Under plaintiff's theory of the case her intestate was struck and killed by defendant's train at a public street crossing in the city of Bessemer between 11:30 and 12 o'clock at night.

Defendants insist it was not known decedent was struck by the train, but, if so, it was not at the crossing but some distance north of the crossing, and offered much proof to substantiate this theory.

The cause for plaintiff was tried upon a single count (count 1) seeking recovery for simple negligence, which count was not subject to the demurrer interposed thereto under Southern Ry. Co. v. Crenshaw, 136 Ala. 573, 34 So. 913, 916.

Discussing counts 1 and 2 in that case the court observed that it was "not necessary for the complaint to negative that she was at fault in the manner in which she conducted herself while on the track in the highway, since such fault, if it existed, was defensive matter."

The evidence was undisputed that for some distance approaching this crossing the track was down grade to such an extent as to permit this freight train to coast as it approached. Perhaps refused charge 6 was faulty in assuming, in view of this proof, that under such conditions the "usual noise of a freight train running at twelve or fifteen miles per hour" was made, there being no evidence upon that subject. But this aside, we think it clear the substance of this charge was fully covered by charges 5 and 11, given for defendant, and that in no event could its refusal be held reversible error.

The principle of law embraced in refused charge 9 was covered in charge 14, given for defendant, and needs no further comment.

Defendants in brief lay much stress upon refused charges 20 and 35 as having application to the proper construction of section 9955, Code 1923, a question touched upon but not directly decided in Louisville & Nashville R. R. Co. v. Lee, 216 Ala. 196, 112 So. 755, and Davis v. Louisville & Nashville Railroad Co., supra. But there is no occasion on this appeal to enter into a discussion of that question for the simple reason that the court gave, at defendants' request, charges 22 and 37 which are identical in substance, if not in exact language of refused charges 20 and 35.

But defendants insist the question is here to be determined for the reason the judgment is also against the engineer and fireman, and the matter of their liability is affected by the statute. But there is proof tending to show there was no compliance with the statute, and that these defendants are affected thereby without regard to the matter of the burden of proof. A like observation was made in Louisville & Nashville R. R. Co. v. Lee, supra.

However, we have no disinclination to an expression of an opinion upon the proper construction of the statute in this regard. The railroad company could only operate its train by and through the agency of its servants or agents. The statute is to be given a reasonable and commonsense construction, and to effectuate the legislative intent. And the statute is to be considered also in connection with sections 9952 and 9953, Code 1923, relative to the agents or servants of the railroad company "having control of the running of a locomotive on any railroad." Section 9952, Code. The Legislature knew of course that the agents or servants operating the train and upon whose negligence a plaintiff relies for recovery may properly be joined as party defendants in a suit against the railroad company. It would be unreasonable, if not absurd, to assume that the lawmakers intended that the burden of proof upon the stated circumstances should rest upon the company, and yet exempt from the operation of the rule the same agents upon whose negligence in the operation of the train liability is sought to be fastened upon the company. This was, to our minds, clearly not the legislative intent, and we therefore conclude that the statute is to be properly construed to the contrary, and as indicated in Louisville & Nashville R. R. Co. v. Lee, supra, and Davis v. Louisville & Nashville R. R. Co., supra.

In Manistee Mill Co. v. Hobdy, 165 Ala. 411, 51 So. 871, 138 Am.St.Rep. 73, the court's condemnation of the use of the word "even" in the charge there considered is equally applicable to defendants' charge 21, and justifies its refusal.

In the argument for the affirmative charge for defendants stress is laid upon Carlisle v. Alabama G. S. Ry., 166 Ala. 591, 52 So. 341, but we find the facts of the two cases widely variant.

Like observation is applicable to the cases of Empire Coal Co v. Martin, 190 Ala. 169, 67 So. 435; Louisville & Nashville R. R. Co. v. Moran, 190 Ala. 108, 66 So. 799; Louisville & Nashville R. R. Co. v. Turner, 192 Ala. 392, 68 So. 277; Louisville & Nashville R. R. Co. v. Jones, 191 Ala. 484, 67 So. 691; McKinnon v. Polk, 219 Ala. 167, 121 So. 539, also cited by...