Seaboard Air Line Ry. v. Laney

• Decision Date: 05 April 1917
• Docket Number: 7 Div. 858
• Citation: 75 So. 15,199 Ala. 654
• Parties: SEABOARD AIR LINE RY. v. LANEY.
• Court: Alabama Supreme Court

75 So. 15

199 Ala. 654

SEABOARD AIR LINE RY. v. LANEY.

7 Div. 858

Supreme Court of Alabama

April 5, 1917

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

Action by Ellender Laney, by her next friend, against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tillman Bradley & Morrow, of Birmingham, for appellant.

Erle Pettus, of Birmingham, for appellee.

MAYFIELD J.

Plaintiff a young lady 19 years of age, went to a station on the railroad to board one of appellant's passenger trains. At the station plaintiff and a number of her friends and others some of whom were intending to become passengers, were standing or walking on or near the railroad track, awaiting the train which was due to arrive within a few minutes. As the train was approaching the station for the purpose of taking on and discharging passengers, etc., plaintiff was standing very near one of the rails of the track at about the end of the cross-ties, with her back toward the oncoming engine. She remained in the position indicated without moving until the sill of the engine's pilot struck her, knocking her about 30 feet.

Plaintiff testified that she never saw or heard the approaching train or engine until it struck her, although she was there awaiting its coming and knew it was due to arrive at about that time. She also testified that she heard no whistle or bell announcing the approach of the train.

The evidence was in conflict as to how often the whistle was sounded, and at what points, and for what purposes, and also as to whether the bell was being rung continuously on the approach.

The complaint contained five counts; but all were eliminated except two, counts 3 and 5. Count 3 declares as for wanton or willful conduct on the part of the servants or agents of the defendant, resulting in injury to the plaintiff. The fifth declared on subsequent negligence; that is, negligence after discovery of plaintiff's peril.

Demurrers were overruled to each of the counts, and demurrers were sustained to all special pleas; and the trial was had on the general issue as to these counts, resulting in verdict and judgment in favor of plaintiff for $2,000. From the judgment defendant prosecutes this appeal.

Opinion.

There was no error in overruling the demurrer to either of these two counts. There was likewise no error in sustaining the demurrer to each of the special pleas attempting to set up contributory negligence on the part of plaintiff. Such pleas, of course, were not availing to the third count, which declared as for wanton or willful injury. Some of them were not sufficient answers to count 5 as last amended, but some were good answers thereto; but the court sustained demurrer to each of these pleas, stating that if the pleas were good the defendant could take advantage of the defense under the general issue; and the trial seems to have been had on that theory. The court instructed the jury to such effect. This instruction would probably have cured the error as to the rulings on the pleadings, because thereunder it would have appeared that no injury resulted; but the trial court seems to have changed opinion on this subject before the case was submitted to the jury; as the court in effect instructed the jury that there was no question of contributory negligence before them.

The bill of exceptions contains the following recitals as to this matter:

"The court also after the conclusion of the oral charge withdrew those parts of said charge relating to contributory negligence as a defense to that count of the complaint charging subsequent negligence on the part of the defendant; that is, the court withdrew those portions of said oral charge to the effect that contributory negligence on the part of the plaintiff was a defense to that count of the complaint charging subsequent negligence on the part of the operatives of the defendant's engine.

"The defendant then and there, in open court, and in the presence of the jury, and before it returned, duly and legally excepted to the action of the court in withdrawing from the jury that part of said oral charge to the effect that contributory negligence on the part of the plaintiff was a defense to the subsequent negligence count of the complaint."

This, of course, had the effect of depriving the defendant of the defense of contributory negligence as to count 5, and was error to reverse.

Contributory negligence is a special and affirmative defense; to be availing it must be pleaded specially, and no other acts of negligence than those specially pleaded can be proven, and, if proven, cannot be made a predicate for a verdict for the defendant. Sloss-Sheffield Co. v. Hutchinson, 144 Ala. 221, 40 So. 114; 6 Mayf.Dig. 664.

In order to sustain the defense of contributory negligence, the conduct of plaintiff must have been negligent, and also have contributed proximately to the injury. Tenn. Co. v Bridges, 144 Ala....