Mobile, J. & K.C.R. Co. v. Smith

• Decision Date: 12 November 1907
• Citation: 153 Ala. 127,45 So. 57
• Parties: MOBILE, J. & K. C. R. CO. v. SMITH.
• Court: Alabama Supreme Court

45 So. 57

153 Ala. 127

MOBILE, J. & K. C. R. CO. v. SMITH.

Supreme Court of Alabama

November 12, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Callie V. Smith against the Mobile, Jackson & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See 40 So. 763.

Action by Callie V. Smith against the Mobile, Jackson & Kansas City Railroad Company for damages. The nature and character of the action and the tendencies of the evidence are sufficiently stated in the opinion of the court. In its oral charge the court said, among other things: "If you are reasonably satisfied from all the evidence that this act was wantonly inflicted, as defined by the court, you may, in your sound discretion, based upon the evidence, award punitive damages." "Also you may award punitive damages based upon the evidence, in your sound discretion, if you think the plaintiff is entitled to it, and you are satisfied that this act was wantonly and willfully done." The court gave for plaintiff the following charge: "If you find that the plaintiff is entitled to recover damages in this case, then you have the right to assess the damages at any amount you find to be proper, under the evidence, not to exceed $10,000," There was verdict for the plaintiff in the sum of $2,500, from which this appeal is prosecuted.

McIntosh & Rich, for appellant.

McAlpine & Robinson, for appellee.

TYSON C.J.

At the time plaintiff received her injuries she was occupying, with her husband, by and with the consent of the defendant, as a dwelling, one of its box cars. This car was located upon a side track of defendant's road at or near one of its stations. The occupancy of the car by the plaintiff as a dwelling covered a period of time of about six months prior to the occasion of her injury. The testimony tended to show not only that the railroad officials knew of her living in this car, but that its employés who were operating the various trains of defendant over its road also knew it. Indeed, the conductor who had charge of the movement of the freight train, which plaintiff's testimony tended to show caused the injury complained of, admitted that he knew that plaintiff and her husband were living in the car at the time the injury was inflicted, but that he did not know whether or not she was in the car at that time, but supposed that she was. Her injury was caused by a fall which was occasioned by the car in which she resided being violently struck by a freight car which was kicked into and upon the side track upon which it stood by an engine operated by the defendant's employés. The trial court, upon the conclusion of testimony, at defendant's request eliminated by written charges the plaintiff's right to recover upon all the counts of the complaint, except the sixth, which predicated her right of recovery upon the willful or wanton conduct of defendant's servants, and submitted to the determination of the jury the question whether the act of those operating the freight train which caused the injury complained of was willful or wanton. It is here insisted that this was error, and that the affirmative charge on this count should also have been given. The point is pressed that there is no evidence, inferentially or otherwise, tending to show that defendant's servants knew that plaintiff was in the car at the time it was struck, and unless they actually knew (not ought to have known) that she was in it, that their conduct did not as matter of law amount to willfulness or wantonness, but at best must be regarded as mere simple...