Richmond & D.R. Co. v. Farmer

• Decision Date: 24 November 1892
• Citation: 97 Ala. 141,12 So. 86
• Court: Alabama Supreme Court
• Parties: RICHMOND & D. R. CO. v. FARMER.

12 So. 86

97 Ala. 141

RICHMOND & D. R. CO. v. FARMER.

Supreme Court of Alabama

November 24, 1892

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by George R. Farmer against the Richmond & Danville Railroad Company for personal injuries alleged to have been caused by the negligence of defendant's servants. Verdict for plaintiff, Defendant appeals. Affirmed.

The facts of the case are sufficiently stated in the opinion. At the request of the plaintiff the court gave the following written charge: "A man under sudden excitement or peril is only required to exercise such care for his own safety as an ordinarily prudent man would have exercised under like circumstances, and if he exercised such degree of care, then in that, he is not guilty of contributory negligence." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following written charges requested by it: (1) "If the jury believe from the evidence that the plaintiff saw or heard, or by using ordinary care could have seen or heard, the approach of the engine which struck him in time to have avoided the accident, they must find for the defendant." (3) "There is no evidence of negligence on the part of the engineer in charge of the engine which struck plaintiff." (4) "If the jury believe from the evidence that the plaintiff ought to have seen the danger, and that he could have avoided it had he seen it in time, they must find for the defendant." (5) "If the jury believe the evidence they must find for the defendant." (10) "The engineer had the right to presume, and to act on the presumption, that the plaintiff would use his eyes and ears with ordinary vigilance under the circumstances to detect the presence of danger; and if the jury believe from the evidence that the plaintiff, by the ordinary use of his senses, ought to have known of the approach of the rear engine, the plaintiff cannot recover and your verdict will be for defendant." (11) "Under the complaint in this case there can be no recovery by the plaintiff if the jury should believe from the evidence that the defendant's servants were not guilty of negligence, and that the only misconduct on the part of the defendant's servants was wanton, reckless, or intentional." (12) "Under the avertments of the complaint there can be no recovery by the plaintiff for any injury proximately caused by wanton, reckless, or intentional misconduct of defendant's servants." There was a verdict for the plaintiff in the sum of $5,000. The defendant moved the court to set aside the verdict of the jury, and to grant a new trial, upon the following grounds: (1) Because the verdict was excessive; (2) because the court erred in its oral charge to the jury; (3) because the verdict was contrary to the law; (4) because the verdict was contrary to the evidence; (5) because the verdict was contrary to the law as charged by the court, and the evidence. This motion was overruled by the court, and the defendant duly excepted, and now brings this appeal, and assigns as error the various rulings of the lower court.

James Weatherly and J. C. Milner, for appellant.

Bowman & Harsh, for appellee.

COLEMAN J.

The action was brought by appellee to recover damages for personal injuries, alleged to have been caused by the negligence of appellant. The record contains but one plea to the complaint, and that is the general issue, "not guilty." It is evident from the character of the evidence introduced without objection, from portions of the charge given ex mero motu by the court, to which there was no exception, and from the charges given at the request of both the plaintiff and defendant, that the question of contributory negligence was an issue in the case, and tried under the general issue of "not guilty." In the case of Railroad Co. v. Croker, 11 South. Rep. 262, following the principle of law declared in many preceding cases, we held that the defense of contributory negligence was not available under the plea of "not guilty," but, to be available, must be pleaded specially. We think the rule founded upon sound principles of pleading, and adhere to it. Whenever an objection is interposed to the introduction of evidence, not admissible under the pleadings as framed, but which might have been under some other plea, an objection to it ought to be sustained; and so the charges of the court, and its action in other respects, must conform to the pleadings as they are made by the parties litigant. This is a familiar principle of pleading and evidence. Where it is manifest, however, from the record, that both parties, without objection, have tried a case for personal injuries to its conclusion, as if upon issued joined upon the plea of contributory negligence, although the record shows no other plea than the general issue, this court has often reviewed the rulings of the trial court as if such issue had been specially pleaded. Pryor v. Railroad Co., 90 Ala. 32, 8 South. Rep. 55; Railroad Co. v. Black, (Ala.) 9 South. Rep. 568; McCauley v. Coal, Iron & R. Co., 93 Ala. 357, 9 South. Rep. 611; and many others might be cited.

The facts show that plaintiff was an employe of the defendant, as section foreman, and injured while in its service. He had been engaged in repairing a broken frog on a trestle. The trestle was about sixty feet long and from four to six feet high. Two engines were standing near the switch, ready to cross as soon as the frog was sufficiently repaired to admit of their crossing. Both engines were backing, but from opposite directions. The evidence narrowed the issue down to the negligence of the engineer in charge of the second engine to cross, and to the question of contributory negligence. The evidence conflicted upon both issues. Plaintiff testified that he "notified the engineer in charge of the first engine to cross over slowly, so that he could watch the frog and switch, and see how it worked; and he told the engineer in charge of the second engine not to proceed at all until he signaled him forward." This engineer was not examined as a witness, but there were facts testified to, from which, if believed, a jury might infer that no such notice was given. The evidence shows that the engineer in charge of the second engine did not wait until signaled, but proceeded close after the first had crossed. The contention of the defendant was that the engineer in charge of the second engine, seeing the first moving forward over the trestle and frog, had the right to presume that the frog was repaired and the way clear, and was justified in moving forward after the first engine had...