Porter v. Louisville & N.R. Co.

• Decision Date: 20 June 1918
• Docket Number: 6 Div. 495
• Parties: PORTER v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

79 So. 605

202 Ala. 139

PORTER v. LOUISVILLE & N.R. CO.

6 Div. 495

Supreme Court of Alabama

June 20, 1918

Appeal from Circuit Court, Blount County; J.E. Blackwood, Judge.

Action by John Porter, as administrator of the estate of M.S Porter, against the Louisville & Nashville Railroad Company for damages for the death of his intestate. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff cannot recover for death of deceased on track under theory of wanton or willful negligence unless the engineer was actually aware of his danger and should have known that deceased did not know of the danger and thereafter failed to use means at hand to avoid the injury.

The following are the assignments of error referred to:

(2) Overruling plaintiff's objection to the following question to the witness Duke: "How did he find out you knew anything about it?"

(6) Overruling plaintiff's objection to the following question propounded to the witness Talford: "Did you know a man was struck at that time?"

(7) Overruling motion of plaintiff to exclude statement of witness T.L. Green: "I was standing on the bottom steps of the agent's office at Blount Springs afternoon March 4, 1913, about 3 o'clock, when Louisville & Nashville engine headed north had cut loose from its train south of the depot, and had gone up on the house track north of the station, and had moved a stock car up there a short distance and cut loose from it, and was backing down towards the station on the house track. No one on the back end, and I don't know whether bell was ringing or not. A freight train headed south had stopped at the water tank north of the station and taken water and pulled down, and W.S. Porter caught side of about fifth car from engine of this train, and rode down to a point opposite agent's office and jumped off, and started across house track about 15 feet in front of engine backing up, and turned and started down middle of track. I saw the engine was about to strike him, and hollered at him, and the porter was hollering at him; but he was struck and dragged about 75 or 100 feet. The engineer was the only one I saw on the engine. He could not have seen Porter after he got on the track. I saw a whisky bottle which was found about where Porter was struck."

(12) In sustaining defendant's objection to the following questions propounded to witness John Taylor: "Did he testify in backing the engine and looking back for a man at the point of collision if a man had come from my side of the track and stopped in the track, I could have seen him all the way up to my engine, if I had been looking?"

(14) In sustaining defendant's objection to the following question propounded to witness John Crane: "Do you know whether any effort was made by defendant to find him" (referring to witness Jones)?

Charge 5, refused to plaintiff, is as follows:

If you believe in this case, you cannot find that plaintiff's intestate was himself guilty of any subsequent negligence on his part contributing proximately to his injuries and death, after said intestate himself became aware of his danger from the then approaching train.

(8) If, upon the consideration of the whole evidence, you are reasonably satisfied therefrom that plaintiff's intestate himself never knew anything of his danger, from the then approaching engine which subsequently struck and killed him, if you find he was struck and killed, then in that event I charge you that said intestate was not himself guilty of any negligence which would constitute any defense to any count of the complaint.

(22) If the jury believe from the evidence that the engineer Talford did not see Porter, the deceased, on the track, or become aware of Porter's danger of being injured by the engine until after he was struck, you should return a verdict for defendant.

(23, 24, 25) Same as 22.

(27) From the evidence in this case you cannot find for plaintiff on account of any wrongful conduct or omission of the fireman Hamm.

(28) You cannot find for plaintiff under the second count of the complaint on account of any acts or omission of the fireman Hamm.

(29) Same as 27.

(30) Before you can find for plaintiff in this case, you must be reasonably satisfied from the evidence: First, that the engineer Talford became aware of the danger of deceased being struck by an engine; second, that thereafter the engineer failed to use the means he had at hand on the engine to prevent injuring Porter, or that he used the means at hand negligently; and third, that such failure on the engineer's part, or such negligent use of the means at hand, was either consciously done by him, or negligently done by him after knowledge of intestate's peril.

(31) Unless you are reasonably satisfied from the evidence that the engineer Talford became actually aware of the danger of the intestate being struck by the engine, and should have known in the exercise of due care on his part that the intestate Porter was unaware of the approach of the engine, and that thereafter the engineer consciously omitted to do something that he ought to have done to prevent striking the intestate, or consciously did something he ought not to have done in that regard, you cannot find for plaintiff under the first count of the complaint.

(32) Unless reasonably satisfied from the evidence that the engineer actually became aware of the peril of plaintiff's intestate on the track before he was struck by the engine in time to have kept from striking him by the use of the appliance at hand on the engine in the manner they are used by engineers of the highest skill, and that thereafter the engineer either consciously or negligently failed to use the appliances at hand to prevent Porter's injury, your verdict should be for defendant, and this would be true regardless of whether the bell on the engine was being rung or the whistle was being blown.

(33) If you believe from the evidence in this case that the engineer did not see plaintiff's intestate on the track, and did not become aware that said intestate was in danger of being struck by the engine until it was impossible to have prevented the intestate being struck by the engine, your verdict should be for defendant.

Erle Pettus, of Birmingham, for appellant.

Geo. W. Jones, of Montgomery, Ward & Weaver, of Oneonta, and Frank Dominick, of Birmingham, for appellee.

SAYRE J.

On a former appeal in this case we made a statement of the general aspects of the case to which we now refer. L. & N.R.R. Co. v. Porter, 196 Ala. 17, 71 So. 334. We reproduce as it was written what we then said with respect to the true issues in the case:

"Clearly, the deceased was a trespasser upon the track, and defendant owed him no original duty to know he was there; but if the engineer was apprised of the presence and peril of the deceased upon the track in time to save him by the prompt use of any means at his command, and thereupon negligently, willfully, or with conscious indifference to the probable consequences of the situation thus known to him, omitted to do what he might have effectually done to save deceased, then defendant was liable under the first or second count of the complaint, according as the jury may have found that the engineer intended to kill plaintiff's decedent or was consciously indifferent to that result on the one hand, or that his omission was the result of mere inadvertence on the other. These were the true issues made by the pleading and the evidence, and to these questions of fact the consideration of the jury should have been limited."

On the second trial the issues were so limited. The assignments of error now presented for review are based upon rulings on evidence and the giving or refusal of special charges requested by the parties. We consider seriatim those assignments of error which are urged in argument, numbering them as they are numbered on the record.

2. In view of the fact that the witness was testifying for plaintiff for the first time on the trial, the question here assigned for error was well within the discretionary latitude of the cross-examination allowed upon immaterial matters. Carmichael v. State, 197 Ala. 185, 72 So. 405.

4. There was no error in overruling appellant's objection to the question propounded by defendant to its witness Higgins:

"When you saw Porter [the deceased] get on the track and the engine backing [[[[as the witness had testified], do you know whether or not he [the engineer] could see Porter?"

This court has ruled upon the propriety of questions like this. Central of Georgia v. Hyatt, 151 Ala. 355, 43 So 867. Another very good reason why reversible error cannot be predicated of this...