Pollard v. Rogers

• Decision Date: 15 April 1937
• Docket Number: 5 Div. 243
• Parties: POLLARD v. ROGERS.
• Court: Alabama Supreme Court

173 So. 881

234 Ala. 92

POLLARD v. ROGERS.

5 Div. 243

Supreme Court of Alabama

April 15, 1937

Appeal from Circuit Court, Lee County; W.B. Bowling, Judge.

Action for damages by J.A. Rogers against the Central of Georgia Railway Company and H.D. Pollard, as receiver of the Central of Georgia Railway Company. Judgment for plaintiff, and defendant receiver appeals.

Transferred from Court of Appeals, under Code 1923, § 7326.

Reversed and remanded.

THOMAS and FOSTER, JJ., dissenting in part.

Jacob A. Walker, of Opelika, for appellant.

Duke &amp Duke, of Opelika, for appellee.

THOMAS Justice.

This suit, brought by appellee, J.A. Rogers, against appellant H.D. Pollard, as receiver of the Central of Georgia Railway Company, was for personal injuries and damages sustained as the result of plaintiff's automobile truck being "run against by a train *** operated by the defendants."

The trial was had on the simple negligence counts, resulting in a judgment for the plaintiff.

Defendant's motion for a new trial was overruled, and from that ruling of the court this appeal is prosecuted, for error is assigned predicated thereon.

It is elementary that the general affirmative charge should not be given when there is conflict in the evidence. McMillan v Aiken et al., 205 Ala. 35, 40, 88 So. 135.

It is the rule that where the verdict is contrary to the great preponderance of the evidence, defendant, on due motion, is entitled to a new trial, though the court was not in error in declining the affirmative charge. The scintilla of evidence rule does not apply as to the ruling on the motion. Koonce et al. v. Craft (Ala.Sup.) 174 So. 478; Commonwealth Life Ins. Co. v. Brandon, 232 Ala. 265, 167 So. 723; Alabama Midland Railway Company v. Johnson, 123 Ala. 197, 26 So. 160.

The evidence for the plaintiff shows the automobile was brought to a stop before entering upon the crossing of more than one, or parallel tracks, and that the open space between the tracks was small. Some witnesses state that such space was not sufficient within which to stop the automobile with safety between such parallel tracks. The photographs in evidence present a question as to this fact for the decision of the jury. So, also, as to what is or is not contributory negligence as to entering upon and proceeding over several railroad tracks alongside and immediately adjacent is dependent upon the facts of each case, and all the attendant circumstances. There is no hard and fast rule to be observed as to procedure over a crossing after entering upon the first of several parallel or immediately adjacent tracks. Cunningham Hardware Co. v. Louisville & N.R. Co., 209 Ala. 327, 96 So. 358; Southern Ry. Co. v. Randle, 221 Ala. 435, 128 So. 894.

The flagman's duty ends after the train has reached or stopped on the crossing, and he is not negligent in then leaving his post of duty, since the train itself is sufficient warning of its presence. Southern Ry. Co. et al. v. Lambert, 230 Ala. 162, 160 So. 262. In this respect the evidence is conflicting, and the refusal of defendant's general affirmative charge was without error.

We come to a consideration of the action of the trial court in instructing the jury, to which instructions exceptions were reserved. Such exceptions will be considered as they are definitely or specifically reserved. Ex parte Cowart, 201 Ala. 55, 77 So. 349; Birmingham Ry., L. & P. Co. v. Jackson et al., 198 Ala. 378, 73 So. 627. In Bean v. Stephens, 208 Ala. 197, 94 So. 173, 175, the rule is thus stated, that "If exception is desired to be reserved to a part of the oral charge of the court to the jury, it must be taken and reserved to the particular language the exceptor conceives to be erroneous" and to be presented for review. The proper way to reserve an exception to a part of the court's oral charge is for the exceptor to select and recite what the court said, or state the substance of what the court said, and thus specifically bring to the attention of the trial court and this court the matter and ruling of which complaint is made. Kelley et al. v. State, 226 Ala. 80, 145 So. 816; J.C. Byram & Co. v. Livingston, 225 Ala. 442, 143 So. 461; Louisville & N.R. Co. v. Parker, 223 Ala. 626, 138 So. 231; Harris v. Wright, 225 Ala. 627, 144 So. 834; Sullivan v. Miller, 224 Ala. 395, 140 So. 606; Beech v. State, 205 Ala. 342, 87 So. 573; Birmingham Railway, Light & Power Co. v. Friedman, 187 Ala. 562, 65 So. 939; General Electric Company v. Town of Fort Deposit, 174 Ala. 179, 56 So. 802; Irvin v. State, 50 Ala. 181.

The first exception taken to the oral charge is not definite enough, under the requirements, to bring the same to the attention of the court and give opportunity for correction, if the court so desires. However, when the statement or instruction is considered with the whole charge given, and with reference to the pleading and evidence, there was no error committed. Louisville & N.R. Co. v. Crick, 217 Ala. 547, 117 So. 167; Lincoln Reserve Life Ins. Co. v. Armes, 215 Ala. 407, 110 So. 818.

The exception to the oral charge, "Then, under these circumstances, you are to determine whether or not the plaintiff was negligent and whether or not the defendant was negligent and which negligence caused the accident," was without error, when the context of the charge is considered. It did not assume or instruct the jury that plaintiff or defendant was negligent; that issue of the respective facts and the resultant injury and damages being left with the jury.

That portion of the oral charge to which exception was taken, viz., "*** contributory negligence, that is, that the negligence that existed was the negligence of the plaintiff," must be taken in its context, and, when so considered, was without error.

The words, to which exception is reserved, and considered as a part of the instruction given, are: "Now, gentlemen, if you find that this accident and the resultant injury were caused by the negligence of this plaintiff in negligently operating his Ford truck, then he would not be entitled to recover and your duty would have been finished and you need not go any further. If however, you conclude that this damage and collision was caused by the negligence of the defendant, if would be necessary then for you to go further and determine what damages you in your sound judgment believe he is entitled to." In this instruction there was no error. The court had theretofore instructed the jury as now to be indicated. And when the oral charge is considered as a whole, as it must be, the defendant was given the benefit of his plea of contributory negligence, as the court instructed the jury, saying:

"Now, are you reasonably satisfied after hearing both sides of this case that the defendant was negligent there and that that negligence caused the accident and resultant damage? If so then the plaintiff would be entitled to the verdict. If, on the other hand, after considering all of the evidence, and considering the burden of proof, the rule for which I have given you, you conclude that this collision and the resultant damage was caused by the negligence of the plaintiff, then you would find for the defendant on his plea of contributory negligence."

The law of such a case is stated in many decisions--it is "axiomatic *** that the plaintiff ought not to recover in a negligence case, unless he proves the negligence alleged; and he cannot recover even then, if he himself or the defendant prove that his (plaintiff's) own negligence proximately contributed to that [negligence] of the defendant to produce the injury received, provided, however, this contributory negligence is specially pleaded." Stowers v. Dwight Mfg. Co., 202 Ala. 252, 254, 80 So. 90, 92; Britt v. Daniel, 230 Ala. 79, 159 So. 684; Carter v. Ne-Hi Bottling Co., 226 Ala. 324, 146 So. 821. The case should not be reversed on the oral instructions given, and to which exception was taken. At most, it was merely subject to explanation, if defendant had so requested in writing, in the opinion of the writer, concurred in by Mr. Justice Foster. The majority hold that reversible error was committed in instructing in oral charge as challenged in fourteenth assignment of error, and as set out above. In other respects, all the justices agree.

The complaint was against the defendants, Central of Georgia Railway Company, a body corporate, and H.D. Pollard, as receiver of the Central of Georgia Railway Company, a corporation. The train is shown to have been operated at the time and place indicated in the pleading--on the tracks of defendant railway company in the hands of and by the receiver named. No more accurate averment is required to inform defendants of the charge and claim made, and the damages sought. Section 5720 of the Code of 1923 authorizes plaintiff, when suing several defendants, whether sued as partners or otherwise, to recover against one or more of said defendants, but renders him (plaintiff) liable to costs to those against whom he does not obtain judgment. And in Rich et al. v. Brewer, 205 Ala. 343, 344, 87 So. 323, it was declared that recovery may be had against one or more defendants jointly sued. See, also, Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293; F.W. Woolworth Co., Inc. v. Erickson, 221 Ala. 5, 127 So. 534. This is not such a case where the agency in operation of the road causing the injury should be averred other than the relation which is stated in the complaint. Montgomery, State Superintendent of Banks v. Chemical Nat. Bank of New York, 209 Ala. 585, 96 So. 898; Pinkston v. Boykin, 130 Ala. 483, 30 So. 398. There was no error in overruling the demurrers to the complaint.

There were several questions asked the witness Perdue and allowed in the answer over objection...