Mobile & O.R. Co. v. Williams

• Court: Alabama Supreme Court
• Writing for the Court: FOSTER, J. FOSTER, J.
• Citation: Mobile & O.R. Co. v. Williams, 121 So. 722, 219 Ala. 238 (Ala. 1929)
• Decision Date: 21 March 1929
• Docket Number: 1 Div. 508.
• Parties: MOBILE & O. R. CO. v. WILLIAMS.

121 So. 722

219 Ala. 238

MOBILE & O. R. CO. v. WILLIAMS.

1 Div. 508.

Supreme Court of Alabama

March 21, 1929

As Modified, on Denial of Rehearing, April 18, 1929.

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action for damages for wrongful death by Myrtle Williams, as administratrix of the estate of Mose R. Williams, deceased against the Mobile & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Requested charge, that negligence cannot be proved by circumstantial evidence, unless circumstances are shown, held properly refused as argumentative.

The complaint is as follows:

"Count 1. The plaintiff, as administratrix of the estate of Mose R. Williams, deceased, claims of the defendant $50,000 as damages, for that, heretofore, to-wit, on the second day of March, 1926, the plaintiff's intestate, Mose R Williams, being then and there an employee of the defendant, which was then and there a common carrier railroad, engaged in interstate commerce, and while the plaintiff's said intestate was engaged under said employment in such interstate commerce, he was run over and killed by one of the defendant's cars, by reason of and as a proximate result of the negligence of another of the defendant's employees in the operation of said car, while acting within the line and scope of his employment, and the plaintiff avers that the said Mose R. Williams left surviving him a widow and dependent children, for whose benefit this suit is brought.

"Count 2. The plaintiff, as administratrix of the estate of Mose R. Williams, deceased, claims of the defendant $50,000, as damages, for that, heretofore, to-wit, on the second day of March, 1926, the plaintiff's intestate, Mose R. Williams, being then and there an employee of the defendant, which was then and there a common carrier railroad, engaged in interstate commerce, and while the plaintiff's said intestate was engaged under said employment in interstate commerce, he was run over and killed by one of the defendant's cars, by reason of, and as a proximate result of the negligence of the defendant, or of its servant or servants, in the operation of said car, while acting within the line and scope of his or their authority, and the plaintiff avers that the said Mose R. Williams, left surviving him, a widow and dependent children, for whose benefit this suit is brought."

The following charges were given at the request of plaintiff:

"2. The court further charges the jury that in order to ascertain the amount of the capital that would be necessary to produce a gross annual income of any given amount, for thirty-two and one-half years (32 1/2) years, upon the basis of an investment at any of the rates of interest mentioned in the evidence, it would only be necessary to modify the capital in the same proportions that the amount of the annual income to be produced bears to One and no/100 ($1.00) Dollars."

"3. The court charges the jury that if they believe from the evidence that the death of Mose R. Williams was the proximate result of the negligence of any of the defendant's employees, while acting within the line and scope of their employment, and that Mose R. Williams, was at that time employed by the defendant and engaged in an Interstate Commerce operation, and that he left a dependent wife and children, then the plaintiff is entitled to recover in this case, whether he was, at the moment that he was killed, engaged in the actual performance of a duty under said employment or not."

"5. The court charges the jury that it is negligence for any employee of a railroad company to violate any of the rules which the railroad company has established and which is then in force for the operation of its trains and for the protection and safety of its employees."

"7. The court charges the jury that if they believe from the evidence that reasonable safety to the trainmen employed by the Mobile & Ohio Railroad Company at the time of the death of Mose R. Williams, required the establishment of some rule by the Mobile & Ohio Railroad Company, by which its employees, who were charged with the duty of starting trains upon their journey, were required, before doing so, to assure themselves that none of the train crew was then under the train performing some of their duties and if they further believe that the Railroad Company had neglected to establish such rules, then such failure would constitute negligence on the part of the Railroad Company."

"9. The court charges the jury that whenever a person is employed by a Railroad Company in the operation of a train in interstate commerce, and while he is so engaged he is killed, by reason of the negligence of any of the other employees of that railroad, acting within the line and scope of their employment, and the person who is killed leaves a dependent widow or dependent children, to administrator of the person so killed is entitled to recover of the Railroad Company, such a sum of money as will, when invested with ordinary care, produce each year such a sum of money as the widow and children would have realized from the earnings of the husband during that year, that is to say, that the administrator would be entitled to recover a sum of money which, if properly invested, would pay to the widow each year the amount that she would have realized that year from the earnings of her husband during his lifetime, plus such a sum of money as each minor child would have realized the benefit of during each year from their father's earnings as long as he lived and they were minors and dependent upon him, plus the value of whatever sum of money which, if so invested, would produce at the time of the husband's death whatever sum, if any, the husband would have accumulated from his savings out of his earnings, and which his widow and children would have inherited at his death."

"10. The Court charges the jury that the question as to whether Mose R. Williams was between the cars of the defendant's train or under the defendant's train at the time that the train in question moved and whether the movement of the train, was the proximate cause of his death, is a question which the jury must determine from the evidence in the case, and in doing so, the jury may look both to positive and direct testimony, and also to all of the circumstantial evidence that may be before them, and if in doing so, they find that there were duties imposed upon Mose R. Williams by the rules of the defendant corporation, which made it necessary for him to be between the cars or under the train at that time in performance of a duty, under his employment then the jury may, if they think proper to do so under all of the circumstances shown by the evidence, presume that he was between said cars, or under said train at that time in performance of that duty."

"14. The Court charges the jury that if they should find a verdict for the plaintiff in this case, they will first determine what amount the plaintiff in the case would have been entitled to recover if the judgment had been rendered immediately after the appointment of the plaintiff as administratrix of the estate of Mose R. Williams, deceased, and they will then add thereto, interest at the rate of eight per cent (8%) per annum from the date suit was filed in this cause to the rendition of the verdict."

"15. The court charges the jury that if they believe that Mose R. Williams was employed by the defendant in Interstate Commerce and was killed while so engaged, as the proximate result of the negligence of another of the defendant's employees, acting within the scope of his duty, and left surviving him a dependent widow and children, then the jury should find a verdict for the plaintiff, for such an amount as, when invested with reasonable safety and without the exercise of any unusual skill, would, from year to year, indemnify the dependent widow and children of Mose R. Williams against any financial loss that they would suffer by reason of his earning capacity being cut off by death."

"17. The court charges the jury that the rule for calculating the measure of damages in this case, if the jury find for the plaintiff, is definitely fixed by the law and is such an amount as would, when invested, with reasonable safety and at such rate of income as the jury may find that plaintiff could, invest the same without the exercise of unusual skill, produce each year an amount that the widow and children, during the dependency, would have realized during that year from the earnings of the deceased, Mose R. Williams, if he had lived, either by way of benefits derived directly from the moneys so earned, or by reason of inheritance from him at the time of his death, of property that he would have accumulated from such earnings after the date that he was killed."

The following requested charges were refused to defendant:

"15 1/2. The Court charges the jury that should you find for the plaintiff, then in considering your verdict on the question of damages, and under the special issues submitted to you in that connection, and thereunder in determining what sum of money as if paid in cash at this time would be sufficient to fairly compensate the surviving wife and children, for their pecuniary loss, you are instructed that in determining the present value of such contributions as plaintiff would probably have received from the continued life of the deceased you will make your calculations on the basis of the amount of your award, bearing interest at the highest net rate of interest that the testimony shows can be had on money safely invested, and secured as shown by the testimony in this case."

"18. The Court charges the jury that negligence cannot be proved by

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