Louisville & N.R. Co. v. Cross, 4 Div. 899

CourtAlabama Supreme Court
Writing for the CourtMcCLELLAN, J. McCLELLAN, J.
Citation88 So. 908,205 Ala. 626
Decision Date10 February 1921
Docket Number4 Div. 899
PartiesLOUISVILLE & N.R. CO. et al. v. CROSS.

88 So. 908

205 Ala. 626

LOUISVILLE & N.R. CO. et al.
v.
CROSS.

4 Div. 899

Supreme Court of Alabama

February 10, 1921


Rehearing Denied April 28, 1921

Appeal from Circuit Court, Covington County; A.B. Foster, Judge. [88 So. 909]

Jones & Thomas, of Montgomery, C.E. Hamilton, of Greenville, and Powell, Albritton & Albritton, of Andalusia, for appellants.

A.R. Powell and J. Morgan Prestwood, both of Andalusia, for appellee.

McCLELLAN, J.

Action by parent, the father, for damages for the wrongful killing by the defendants of his minor child. Code, § 2485. The damages recoverable in such actions are punitive only. L. & N.R.R. Co. v. Phillips, 202 Ala. 502, 80 So. 790.

The plaintiff's 20 months old child strayed, unattended, on the railway track of the company, and an engine and train of the company, with Engineer McKenzie (also a defendant) in charge, ran over the child, killing it. Counts 1 and 2 of the complaint are designed to attribute the child's death to McKenzie's negligence after the engineer discovered the peril of the child. If it were assumed that count 1 was defective in omitting to expressly aver that the child was in peril before the approaching train, no possible prejudice resulted to the defendants in overruling the demurrer to count 1, for the reason that count 2, proceeding on the same theory, was entirely sufficient in that respect. It is at least quite doubtful, however, whether count 1 is subject to the indicated criticism; the facts (not mere conclusions) averred being hardly susceptible of any other interpretation than that the child, only 20 months old and "alone," was in peril before the approaching train that killed it.

The insistences for error in refusing affirmative instructions against a recovery by plaintiff, as well as in overruling the motion for new trial on the ground that the evidence did not warrant a verdict for plaintiff or that the verdict was contrary to the evidence, cannot be supported on the record here. There was evidence and inferences from evidence going to establish every essential to a right in plaintiff to recover on the theory stated. There was evidence and inferences from evidence going to refute the case made for the plaintiff. It was the jury's province and function to decide the issues; to determine the truth from the conflicting evidence; to accord or to refuse credit to the testimony of the witnesses; and, in the state of the evidence disclosed by the record, it cannot be affirmed that the trial court erred in overruling the motion for new trial on the grounds stated just above. Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738, and numerous others in its line. There was no objection to the recital by the witnesses, on both sides, of the gruesome details of the child's death, nor to the exhibition of the clothing, etc., associated with its death. These circumstances, presented without any objection and, so far as appears, admissible in evidence, possess no tendency to show passion, bias, or prejudice on the part of the jury in the verdict rendered.

A photograph, or photographs, of the locus in quo were offered in evidence. Subsequent to the matters to be mentioned, the photographer identified the photographs as those made by him. No photograph is shown by the record. Being a part of the evidence before the trial court, a full record here required their presence therein. Montevallo Mining Co. v. Underwood, 202 Ala. 59, 62, 79 So. 453. A "flag" was shown on a photograph exhibited to the witness L.R. Cross. Plaintiff's counsel propounded these questions to him:

"I will ask you this: Does this point here, this flag here--is that the point where the blood was on the railroad track and cross-ties?"

Also:

"Is this--what flag is this?"

There was no error in overruling objections to these questions. They sought to elicit matter explanatory of the photograph and serviceable to refer the object (flag) to the place where the blood was on the track, not where the child was struck. The bill of exceptions recites:

"After the testimony was closed, A.R. Powell, of counsel for plaintiff, made the opening argument for the plaintiff In discussing the law of the case to the court, he cited among other authorities the case of Louisville &amp Nashville Railroad Company et al. v. Phillips, 80 So. 790; after the calling the attention of defendants' counsel to the book and page of same, and referring to said case, stated in the presence and hearing of the jury, after reading the facts of said case as reported, that said case was against the Louisville & Nashville Railroad Company and its engineer, John Cobb; that the cause of action in said case was similar to this case, to the extent that the damages claimed were for the negligent killing of the plaintiff's minor son by defendant and its engineer; that the verdict of the jury in that case was $15,000, and that the Supreme Court on appeal held that the verdict was not excessive, and that the measure of damages was punitive and within the discretion of the jury, and also [88 So. 910] stated to the court that some of the law applicable to that case was applicable to this case. The foregoing argument of counsel was addressed to the judge; said attorney then turned and addressed the jury on the facts of the case at law, without referring in his remarks to the jury to the said Phillips Case.
"One of the attorneys for the defendants, at the close of the argument to the jury of the attorney for the plaintiff, in opening his argument for defendants, called the attention of the court to the foregoing statements made by the attorney for the plaintiff in the presence and hearing of the jury, stating that the facts in the foregoing case referred to by the attorney for the plaintiff should not be considered by the jury in arriving at a verdict, to which the court assented and stated that the jury would be so instructed."

The sixth and seventh grounds of the motion for new trial are predicated on the occurrence described in the quotation from the bill of exceptions. It was not error to overrule these grounds of the motion for new trial. The reading of the report of L. & N.R.R. Co. v. Phillips, supra, was to the court, not to the jury. Being a sound decision...

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22 practice notes
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...States Steel Co. v. Justice, 204 Ala. 577, 583, 87 So. 211; Allen v. Alger-Sullivan Lbr. Co., 204 Ala. 92, 85 So. 278; L. & N. v. Cross, 205 Ala. 626, 629, 88 So. 908; L. & N. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co.......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...Steel Co. v. Justice, 204 Ala. 577, 87 So. 211; Allen v. Alger-Sullivan Lumber Co., 204 Ala. 92, 85 So. 278; L. & N. R. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; L. & N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co. v......
  • Phillips v. State, 7 Div. 864.
    • United States
    • Supreme Court of Alabama
    • October 10, 1946
    ...Court of Appeals read in their presence. Western Union Tel. Co. v. Benson, 159 Ala. 254, 275, 48 So. 712; Louisville & N. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; Davis v. State, 213 Ala. 541, 105 So. 677; Stewart v. State, 78 Ala. 436; Williams v. State, 83 Ala. 68, 3 So. 743; Yarbrough ......
  • Parke v. Dennard, 2 Div. 924
    • United States
    • Supreme Court of Alabama
    • October 18, 1928
    ...wrongful act and the degree of culpability involved. Richmond & D.R. Co. v. Freeman, 97 Ala. 294, 11 So. 800; L. & N.R.R. Co. v. Cross, 205 Ala. 626, 88 So. 908; Mobile Electric Co. v. Fritz, 200 Ala. 692, 77 So. 235. Much must be left to the sound discretion of the jury, though a revisable......
  • Request a trial to view additional results
22 cases
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...Steel Co. v. Justice, 204 Ala. 577, 583, 87 So. 211; Allen v. Alger-Sullivan Lbr. Co., 204 Ala. 92, 85 So. 278; L. & N. v. Cross, 205 Ala. 626, 629, 88 So. 908; L. & N. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coa......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...Co. v. Justice, 204 Ala. 577, 87 So. 211; Allen v. Alger-Sullivan Lumber Co., 204 Ala. 92, 85 So. 278; L. & N. R. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; L. & N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal......
  • Phillips v. State, 7 Div. 864.
    • United States
    • Supreme Court of Alabama
    • October 10, 1946
    ...of Appeals read in their presence. Western Union Tel. Co. v. Benson, 159 Ala. 254, 275, 48 So. 712; Louisville & N. R. Co. v. Cross, 205 Ala. 626, 88 So. 908; Davis v. State, 213 Ala. 541, 105 So. 677; Stewart v. State, 78 Ala. 436; Williams v. State, 83 Ala. 68, 3 So. 743; Yarbrough v.......
  • Parke v. Dennard, 2 Div. 924
    • United States
    • Supreme Court of Alabama
    • October 18, 1928
    ...act and the degree of culpability involved. Richmond & D.R. Co. v. Freeman, 97 Ala. 294, 11 So. 800; L. & N.R.R. Co. v. Cross, 205 Ala. 626, 88 So. 908; Mobile Electric Co. v. Fritz, 200 Ala. 692, 77 So. 235. Much must be left to the sound discretion of the jury, though a revisable ......
  • Request a trial to view additional results

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