Scott v. Louisville & N.R. Co.

• Decision Date: 20 October 1927
• Docket Number: 5 Div. 945
• Citation: 217 Ala. 255,115 So. 171
• Court: Alabama Supreme Court
• Parties: SCOTT v. LOUISVILLE & N.R. CO.

115 So. 171

217 Ala. 255

SCOTT v. LOUISVILLE & N.R. CO.

5 Div. 945

Supreme Court of Alabama

October 20, 1927

Rehearing Granted Dec. 8, 1927

Rehearing Denied Jan. 28, 1928

Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.

J.O Middleton, of Montgomery, for appellant.

Lawrence F. Gerald, of Clanton, Eyster & Eyster, of Albany, and A.A Griffith, of Cullman, for appellee.

ANDERSON C.J.

This case was tried on count 8, a wanton or willful one, and as to which contributory negligence was not, and could not have been, properly pleaded. Therefore there was no error upon the part of the trial court in refusing the plaintiff's requested charges dealing with contributory negligence which was in no sense an issue in the case, notwithstanding some of the proof, which was a part of the res gestae, may have had a tendency to show contributory negligence on the part of the plaintiff's intestate.

It is true that a wanton killing need not amount to murder, but there was no error in refusing the plaintiff's requested charges to the effect that wantonness did not constitute or amount to murder. There was no charge of murder involved, and this line of charges had no proper bearing upon the case.

Charges 1 and 2, refused the plaintiff, recite the truth and the law as an intent to injure is not necessary to constitute wantonness, but the trial court fully and fairly defined wantonness in the oral charge. The court was only required to state what did, and not what did not, constitute wantonness. The cases of B.R.P. Co. v. Ryan, 148 Ala. 76, 41 So 616, and A.G.S.R.R. v. Williams, 140 Ala. 238, 37 So. 255, simply hold that there was no error in giving charges with similar expressions, but they, nor any other case that we have found, hold that the refusal of such charges would be reversible error.

The charge, which we number 9, and which was refused the plaintiff, was fully covered by the oral charge.

There was no error in giving charge C at the request of the defendant, or, if there were, it was rendered innocuous by the verdict of the jury. True, though Arrington was only the fireman, and Snyder, the engineer, was in charge of the engine, under the previous decisions of this court this did not relieve the fireman from discharging certain duties under certain circumstances to conserve the safety of persons upon the track. Snider v. A.G.S.R.R., 210 Ala. 119, 97 So. 209; A.G.S.R.R. v. Sanders, 203 Ala. 58, 82 So. 17; Herring v. L. & N.R.R., 195 Ala. 436, 70 So. 749. As, for instance, when he saw one in danger, and the engineer did not, or when the engineer did, and did not or could not act, then it would be his duty to act, if by doing so the injury could be avoided. But the record in this case relieves Arrington of wantonness for a failure to act after a discovery of peril. He said, and his testimony was not disputed, that he did not discover the automobile until the train was within 50 feet of same, and it was within 6 feet of the track. Indeed, it seems that Arrington did not discover the automobile until the engineer "put on the emergency." Therefore there was nothing for Arrington to have done to have averted the injury. Of course, there is also a wanton theory in the case based on the facts that the injury occurred at a populous road crossing; that the train was going at a rapid rate of speed; that conditions were known to the engineer, and he approached the crossing without giving the proper signals or warnings. It may be conceded that all these facts existed without controversy, except as to the signals, and, if the signals were not given, the engineer would have been guilty of wantonness under these circumstances, but the jury, in effect, acquitted the engineer of wantonness as for a failure to give the signals or for any other dereliction amounting to wantonness, and the duty to give the signals rested primarily upon the engineer, and only secondarily upon the fireman, especially in view of the undisputed evidence that the engineer had an automatic bell ringer, and was also in control of the whistle. In other words, there was no duty or neglect under the facts of this case chargeable to Arrington as to signals that could not, and should not, have been discharged by Snyder, the engineer.

There was no error in giving charge 27 at the request of the defendant, for, as pointed out in dealing with charge C Arrington could not be guilty of wantonness, unless Snyder was as to the warning, and there was no proof to place wantonness on Arrington for a conscious failure to act after discovering the intestate's...