Randle v. Birmingham Ry., Light & Power Co.

• Decision Date: 01 December 1910
• Citation: 169 Ala. 314,53 So. 918
• Parties: RANDLE v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

53 So. 918

169 Ala. 314

RANDLE v. BIRMINGHAM RY., LIGHT & POWER CO.

Supreme Court of Alabama

December 1, 1910

Rehearing Denied Dec. 22, 1910.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by William J. Randle, as administrator, against the Birmingham Railway, Light & Power Company. Judgment for plaintiff in the sum of $500, and he appeals. Affirmed.

The following charges were given for the defendant: (1) "If after a consideration of all the evidence, the jury should determine to award plaintiff damages, they cannot, in estimating the amount, consider the pecuniary value of the life of Randle, but can only award damages by way of punishment to the defendant; and if the jury believe that damages in a small amount will be sufficient punishment for the acts of its motorman, it would be unjust to award damages in a large amount." (2) "The defendant cannot be made to pay any damages for any error of judgment on the part of the motorman, if such there was, in ascertaining whether Randle was in a position of peril, or in ascertaining whether he was ignorant of the approach of the car." (3) "The damages in this case are by way of punishment visited upon the defendant on account of the act of the motorman." (4) "Any damages that might be awarded in this case will be by way of punishment to the defendant for the act of the motorman; and, if the jury believe that a small amount is just and proper under all the circumstances they are authorized to render a verdict in a small amount." (5) "The motorman of a street car is not obliged to stop a car as soon as he sees an adult person walking along the line of railroad ahead of the car, but may continue to run the car in a proper manner until he is confident of the fact that such person is unaware or heedless of danger." (6) "Seeing an adult person walking along the track, the motorman of an electric car may assume that he will turn aside and out of the way of the car; and the motorman can rest on this assumption until it becomes apparent that the person is unaware or heedless of the danger of being struck by the car." (7) "The motorman had the right to run the car without signals of the conductor and in the direction of Randle until he saw or knew that Randle did not intend to get off, or could not get off, the track if he was walking along the track; and if the motorman in good faith merely erred in his business as to whether Randle was ignorant of the approach of the car, and until it was too late to avert the accident, before taking measures to prevent the accident, if he did take such measures, you must find a verdict in favor of the defendant, provided you believe from the evidence that the motorman promptly and diligently used all the means at his command to avoid the injury, after the discovery of Randle's peril." (9) "A mere error of judgment on the part of the motorman, operating a car, if made in good faith, as to whether a pedestrian walking on or dangerously near the railway track is in danger of being struck by the car, does not amount to such negligence as is complained of in the counts of the plaintiff's complaint which are submitted to you by the court."

M. M. Ullman, W. A. Denson, F. S. White & Sons, and Jno. L. Burnett, for appellant.

Tillman, Bradley & Morrow, for appellee.

McCLELLAN J.

Previous appeals of this case will be found in 149 Ala. 539, 43 So. 355, and 158 Ala. 532, 48 So. 114. This appeal is prosecuted by the plaintiff, from a judgment in his favor for $500 damages. Under the direct authority of Donovan v. S. & N. R. R. Co., 79 Ala. 429, and Carrington v. L. & N. R. R. Co., 88 Ala. 472, 6 So. 910, "we will not consider as revisable error any ruling of the primary court bearing merely on the naked question of the defendant's liability, and not affecting the amount of the damages recovered, however erroneous it may be in fact, because, if error, such ruling is error without injury to the plaintiff." The damages recoverable in this action fall under the influence of the homicide act (Code 1896, § 27; Code 1907, § 2486), and are, hence, punitive only. L. & N. R. R. Co. v. Street, 164 Ala. 155, 51 So. 306; R. & D. R. R. Co. v. Freeman, 97 Ala. 289, 11 So. 800, among others.

It appears, affirmatively, from the bill of exceptions that all counts save that designated Z were withdrawn by plaintiff, and that that count was the only one submitted to the jury. Count Z is predicated upon negligence after the discovery of intestate's peril, the vital averment therein being that the "negligence consisted in this: The servants or agents aforesaid, after becoming aware of the perilous position of plaintiff's intestate upon the track of the defendant in front of a moving car, negligently failed to use all means at their command to avoid injuring said intestate when by the use of said means said injury would have been avoided." As to the relation of intestate to the way in which he was killed, the bill of exceptions recites: "In their argument to the court and jury, after the evidence had closed, plaintiff's counsel admitted that Randle was a trespasser on defendant's track." The report of the appeal will contain the charges upon which the assignments of error are predicated.

The application of the rule of the Carrington and Donovan Cases, supra, eliminates from consideration charges (we number) 2, 5, 6, 7, and 9, given at defendant's instance, which, as we interpret them, treated alone the naked question of substantive liability vel non, and did not affect the inquiry as respected the measure or amount of the damages.

If we correctly resolve the argument of counsel for appellant, leading to the exemption of these charges from the influence of the doctrine of the Carrington and Donovan Cases, supra, it is premised upon the fact that the damages recoverable under the homicide act, while only punitive, depend for amount upon the measure of culpability attending the act causing the death; and that that measure of culpability must itself depend upon the elements, nature, and scope of the obligation to do, under conditions given, that which, in legal parlance, we generally nominate as duty. The conclusion is that the intent of the statute is that the measure of the punishment, viz., the amount of damages imposed, should consist with the degree of culpability affecting the act, resulting in death, and that in proportion as the duty to avert the tragedy is more exacting, or higher, the measure of punishment will pari passu enhance; and, hence, a charge that minimizes the duty correlatively and proportionately affects the damages recoverable, and, in consequence, does not alone touch the mere naked question of liability vel non, resolved by the jury on the trial below, in plaintiff's favor.

As the argument indicates, the charges do not refer, even inferentially, to the measure of the recoverable damage for the wrong alleged. Two of them (5 and 6) treat of the presumption an operative has the right to indulge, within legally defined limits, that one, apparently adult, walking on a railway, will take account of the approach of a train or motor, and remove himself from the range of injury thereby. The other (7) hypothesizes the exemption of the operative from the imputation of negligence, if he "in good faith merely erred in his judgment as to whether Randle was ignorant of the approach of the car, and waited until it was too late to avert the accident before taking measures to prevent the accident." This charge then concludes to a finding for defendant, provided after discovery of Randle's peril the operative used all preventive means at command to avert injury. Those numbered 2 and 9 are not, in principle, as here important, materially different from charge 7.

The verdict comprehended and denied, in its finding, any advantage to defendant from the propositions of the charges whether they were abstractly sound or were correctly phrased or not; but, on the contrary, the verdict concluded to liability, and hence in plaintiff's favor. These charges deal alone with the conditions to liability, viz., with what constitutes negligence under the facts hypothesized. In none of them was the degree of culpability, adverted to in R. & D. R. R. Co. v. Freeman, supra, and in L. & N. R. R. Co. v. Tegner, 125 Ala. 599, 28 So. 510, treated; and it is the degree of culpability upon which the jury determine the quantum of the damages to be awarded as punishment. That the propositions stated in the charges immediately tended to affect the liability of the defendant in this cause, and in that general sense tended to affect the damages recoverable is of course evident. But the...