Richmond & D.R. Co. v. Greenwood

• Citation: 99 Ala. 501,14 So. 495
• Court: Supreme Court of Alabama
• Decision Date: 27 April 1893
• Parties: RICHMOND & D. R. CO. v. GREENWOOD. [1]

14 So. 495

99 Ala. 501

RICHMOND & D. R. CO. v. GREENWOOD. ^[1]

Supreme Court of Alabama

April 27, 1893

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

Action by J. T. Greenwood against the Richmond & Danville Railroad Company and the Savannah & Western Railroad Company for damages for personal injuries. Judgment for plaintiff against the Richmond & Danville Railroad Company, which appeals. Reversed.

The undisputed facts, as disclosed by the bill of exceptions, are as follows: On December 24, 1889, the plaintiff was a passenger on one of the regular passenger trains of the Richmond & Danville Railroad, going from Birmingham eastward in the direction of Atlanta, Ga. When about 12 miles east of Birmingham, where the track of the Richmond & Danville road crossed the track of the Savannah & Western road, there was a collision between the passenger train on which the plaintiff was riding and the freight train of the Savannah & Western road. Both trains were moving forward, with their engines in front of them. The tracks crossed each other at this point at an acute angle. The Savannah & Western train was coming from the west towards Birmingham. The engineer of the passenger train was in his seat on the right of the engine; the fireman was putting coal in the engine; and a flagman who had gotten on the train was sitting in the fireman's seat. The engineer and fireman of the freight engine were in their proper seats. The collision occurred in the daytime. There was an embankment on the west or north side of the Richmond &amp Danville track, intervening between the two tracks, and obstructing the view to some extent. This embankment was about 30 or 40 feet high, at a distance of 200 or 300 feet up the Richmond & Danville track, and gradually declined to a distance of about 11 feet high as it approached the crossing. There was a stop post within a few feet of the Richmond &amp Danville track, and about 100 or more feet from the crossing to indicate where trains should stop on approaching said crossing. There was a similar stop post near the Savannah &amp Western track, about 75 or 80 feet from the crossing. No person on the Richmond & Danville engine actually saw or heard the approaching Savannah & Western train until after the latter train had approached so near the track of the Richmond & Danville Railroad that the said Richmond &amp Danville engine could not be stopped by the use of all possible means for that purpose. The testimony for the plaintiff tended to show that the engineer on the Richmond & Danville train had blown the whistle for the crossing, but did not come to a stop, or slacken the speed of the train, which was running at the rate of 35 or 40 miles. The testimony for the defendant was in direct conflict with this portion of the plaintiff's evidence, and tended to show that the engineer did stop for the crossing, after blowing his whistle therefor, and that the speed of the train did not exceed 10 or 12 miles. The plaintiff was a resident of Greenville, in Hunt county, Tex., and was not present at the trial, but his testimony was taken by deposition. The other tendencies of the evidence are sufficiently shown in the opinion. The trial of the cause was commenced February 5, 1892. On January 28, 1892, the Richmond & Danville Railroad Company entered on the motion docket a motion, in which it moved the court "to grant an order directing and requiring the plaintiff in this case to appear in person at the trial of the case, and to submit his person to a physical examination by medical experts, to be nominated by the court, or selected by the parties or their attorneys." The grounds of the motion were that the plaintiff was a resident citizen of Texas, and sues to recover a large sum of money for personal injuries alleged to have been sustained by him while on the defendant's train; that he claims to have sustained permanent injuries in his head, spine, back, and limbs, internal organs, and nervous system; and that he has taken steps to have his own deposition taken, and the depositions of a large number of witnesses who reside in Georgia and Texas, so that defendants will be deprived of the opportunity to examine plaintiff and his witnesses face to face, and "will not be able to view or to exhibit to the jury the person of the plaintiff, so as to determine with any degree of certainty the truth or falsity of plaintiff's claim of permanent injury, or the truth or falsity of the testimony of plaintiff or his witnesses;" and hence, if the plaintiff does not appear at the trial in person, gross injustice may be done to the defendant. In support of this motion, the defendant, in open court, offered to defray all the necessary and actual expenses arising from the granting of said motion. On the hearing of said motion, the court overruled the same, and the defendant duly excepted. When the cause was called for trial, one of the regular juries being in the jury box, each of the defendants separately and severally demanded a right to have a struck jury, as provided by section 2752 of the Code of 1886. There were 24 regular jurors in attendance upon court. The sheriff furnished each of the defendants a list of the 24 jurors in attendance, and thereupon each of the defendants separately demanded that six more jurors be employed, and added to the 24 jurors, from which to secure a struck jury. The court refused the demand to add the six jurors, and the defendants then and there separately excepted. The defendants then separately objected to strike from the list of 24 jurors so furnished, and assigned, as its reason therefor, that it is impracticable for each separate juror to strike 6 men from said list of 24.

It is not deemed necessary to set out in detail all the rulings upon the evidence, since, as is stated in the opinion, they are not urged as ground of reversal by counsel. The Richmond & Danville Railroad separately excepted to the bracketed [ ] portions of the following excerpts from the court's general oral charge: (1) "Now, you will notice gentlemen of the jury, that there are two defendants here, and the plaintiff claims that both of them are liable; but, if both of them are guilty of negligence, as I shall explain to you, then both of them are liable. [If one was guilty of negligence, and the other was not, then the company that is guilty of negligence is liable, and the other is not."] (2) "When the tracks of two railroad companies cross each other, the engineers and conductors must cause their trains to come to a full stop within 100 feet of said crossing, and not proceed until they know the way to be clear; trains on the railroad having the older right of way being entitled to cross first. [Now, you will see from that, that, if both roads had observed these precautions, it would be impossible for any collision to occur. Each one, coming up to within 100 feet of the crossing, would stop, and see that the way was clear, and then proceed. It would be impossible for them to collide at the crossing. It would not be impossible, however, for a collision to occur when one road observes these precautions, and the other road does not. The managers, engineers, and conductors of trains are not required to do impossible things. What they are required to do is to exercise that reasonable degree of care that men in their situations, prudently conducting railroads, and governed by this statute, would use themselves under the circumstances. For instance, if one train comes up to a point which is within 100 feet of the crossing, and observes these precautions, and sees whether or not the way is clear, and there is no train in such distance, and if it then proceeds along, after having stopped, and a collision occurs, the road that stopped-and the train that first stopped does proceeds, and another train should come rushing along, not having observed these precautions, and going so swiftly, or perhaps around a curve, so that its approach could not have been seen by this first train,-why, then you see that the first train has been guilty of no negligence, because it exercised all the care that it could have exercised. They stopped, and saw that the way was clear, and the negligence would be on the other train, that did not observe these precautions, having caused the collision. Now, one road has the right to suppose in its conduct that another road is going to observe the proper precautions, so then I mention that to you to show you that one road may be liable, and another may not be liable."] (3) "You will consider whether or not either of the roads were guilty of any negligence. If neither of them were guilty of any negligence, why, then there could be no recovery. [If one of them was guilty of negligence, and the other was not, why, then there should be no recovery against the one that was not guilty of the negligence." (4) "If both roads were guilty of negligence that contributed to the plaintiff's injury, then there should be but one verdict by you against both of the roads." (5) "If you believe that the plaintiff is entitled to compensatory damages, then you are to consider whether or not you will give him what is called 'vindictive damages,' or 'punitive damages,' which means punishment against the one they are imposed upon,-are assessed for that purpose. They are in the nature of a punishment."] (6) "Now, if simple negligence is proven, and only simple negligence is proven, then the damages could only be compensatory; [but, if willful neglect or gross neglect is proven, then it is left to your judgment and discretion to say whether or not you will inflict punitive damages; that is, damages to punish the defendant or defendants for the willful disregard of the safety of other people."] The Richmond & Danville Railroad requested the court...