Shirley v. Southern Ry. Co.

• Decision Date: 30 November 1916
• Docket Number: 6 Div. 359
• Citation: 198 Ala. 102,73 So. 430
• Parties: SHIRLEY v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

73 So. 430

198 Ala. 102

SHIRLEY v. SOUTHERN RY. CO.

6 Div. 359

Supreme Court of Alabama

November 30, 1916

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Suit by Marion Shirley, as administrator, etc., against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

Ray &amp Cooner, of Jasper, for appellant.

Bankhead & Bankhead, of Jasper, for appellee.

THOMAS J.

This is a suit for damages for the death of plaintiff's intestate, Mrs. Belle Shirley, alleged to have been caused by her being struck by a train of the Southern Railway Company.

Said intestate was an inmate of an infirmary at Corona, Ala where she had been operated on. During the night she escaped from the hospital, and was found lying on defendant's right of way, between 7 and 8 o'clock on the morning of March 14, 1915, by the crew of a passing train. At the place where intestate was found the track was straight for some distance in the direction from whence the train came. Intestate was found lying on the left side of the track according to the way the train was proceeding.

The engineer in charge of said engine testified for the defendant that he was on the right side of his engine, keeping a lookout down the track in front of his engine, and that he saw no one near or on the track.

The conductor in charge testified that he was at the time on the engine; that he was standing back of the engineer and looking out of the engineer's window, down the track; and that he saw no one on or near the track.

The fireman testified that he had been fixing his fire, and that as he got up on the box again he saw Mrs. Shirley for the first time; that she was lying lengthwise with the ties perfectly still; that he saw her as the cylinder of the engine passed her, but did not see her on the track; that he called to McKibbon, the conductor, and Chappell, the engineer, that some one was there beside the track. There was testimony to show that when Mrs. Shirley was first seen by this witness she was lying at right angles with the track with her head resting on her arm, her head being about at the end of the crossties; and that she was wet and cold and shivering, and apparently unconscious, when picked up.

On former appeal (Southern Railway Co. v. Shirley, 189 Ala. 568, 66 So. 511) this court held that the defendant was entitled to the general affirmative charge because of insufficient testimony to warrant the inference by the jury that the engineman in charge of this locomotive saw the intestate in a place of danger, and, after so seeing her, wantonly or intentionally or heedlessly ran the engine upon her.

The cases of Southern Railway Co. v. Stewart, 179 Ala. 304, 66 So. 927, Carlisle v. A.G.S.R.R. Co., 166 Ala. 591, 52 So. 341, Southern Railway Co. v. Bush, 122 Ala. 470, 26 So. 168, Southern Railway Co. v. Shelton, 136 Ala. 191, 34 So. 194, L. & N.R.R. Co. v. Calvert, 172 Ala. 597, 55 So. 812, and N.A.R. Co. v. Guttery, 189 Ala. 604, 66 So. 580, are distinguishable from the Shirley Case. It was observed in the Shirley Case that:

"In those cases, where it has been held that, notwithstanding the engineman's testimony that they were keeping a lookout at the time of striking the injured person, and did not see him on or near the track in front of the engine, it was a question for the jury whether or not in fact they did see him, the rulings rest upon the assumption that some of the evidence showed that the injured person was in fact upon the track, and hence they must have seen him in spite of their denials."

The same distinction may be made as to Louisville & Nashville Railroad Co. v. Jenkins, 72 So. 68, where many authorities on this question were collected.

The lack of evidence on the former appeal that the injured person was in fact upon the track or in dangerous proximity thereto, and hence must have been seen by the enginemen, in spite of their denials, was clearly met by plaintiff on the last trial by the testimony of the two witnesses Bud Boone and Smith Cooper. Referring specifically to the testimony of these two witnesses, as illustrative of the materiality of the evidence offered for the purpose of impeachment, the witness Boone testified that he and Smith Cooper saw Mrs. Shirley on the railroad track walking between the rails towards Patton Junction; that witness was proceeding along the dirt road immediately adjacent and parallel to the railroad track; that they saw Mrs. Shirley before they saw the train; that after witness saw her he "went about 25 or 30 steps before the train passed" going east towards Birmingham on the main line on which Mrs. Shirley was walking; saw the train just a few minutes after he saw Mrs. Shirley, and that "the train was about as far from her as the distance across this courthouse or not so far"; that witness left Patton between 5 and 6 o'clock of that morning, arriving at Corona between 7 and 8 o'clock, stopped a few minutes at one place on the way, then went to his home, and thence to the commissary, where he heard of Mrs. Shirley's injury. Witness fixed the time at which he heard of the injury at "about 7 o'clock," and stated that Smith Cooper and he separated at the depot. Witness further stated that at that time he was working at Corona, loading coal at No. 3 mines; that he and others so engaged in the mines were required to work every day when there was coal to load.

Smith Cooper testified substantially as did the witness Boone, to seeing Mrs. Shirley walking along the main line on which the defendant's train proceeded. He said:

"I could see the engineer and fireman looking ahead toward her. It seemed to me that she just had on her nightclothes with something around her like a shawl or coat. I don't think she had on any shoes; looked like she had on white stockings, or something of the kind. We went on to Corona from there. The train was going in the direction she was. At this time the woman, in my best judgment, was 300 or 400 yards east of Corona."

On cross-examination this witness further stated that he was working at Corona at the time, in No. 3 mines; did not remember whether there was any work that day or not; that he went to work about 6 or 7 o'clock when he worked in the mines; that witness passed this woman about 7 o'clock or a little after; that he did not look back to see if the train hit her; that witness could see Mrs. Shirley several hundred yards before witness passed her, and "could see the engine down the road then"; that he saw the fireman at his window and saw the engineer on his seat; that he heard of the accident about 20 minutes after he came to Corona.

Thus the plaintiff's testimony was materially different from that shown by the record on the former appeal. The case was brought by this evidence within the purview of the Bush, Calvert, Guttery, and Jenkins Cases, and presented a question of fact for the decision of the jury.

Defendant sought to impeach witnesses Boone and Cooper by the introduction in evidence of the mine pay roll, and especially that portion thereof showing that said witnesses "had time turned in on said pay roll for the 14th day of March, 1912," the day, according to witnesses' testimony, on which they saw Mrs. Shirley at the time and place and under the circumstances detailed. The pay roll was shown to be in the handwriting of one George Adams, who was on March 14, 1912 (the day of the alleged injury), timekeeper for the Corona Coal & Iron Company, and for its mine No. 3; and it was further shown that Adams was not then a citizen of Alabama, but was in the state of Mississippi. It was also in evidence that at the time in question the men working for the company were required to go into the mines at 7 o'clock. Defendant's insistence was that, if said witnesses were working in the mines on the day Mrs. Shirley was found, as the pay roll tended to show, at and after 7 o'clock a.m., they could not have been at the place indicated by witnesses as where they saw Mrs. Shirley at the time specified. The court entertained the opinion that it was necessary to produce the witness who prepared the pay roll in order to make the roll competent evidence for the purpose of impeachment, and on plaintiff's motion excluded that document from the consideration of the jury.

The bill of exceptions proper, aside from the motion for a new trial, does not recite that on this adverse ruling of the court the defendant pleaded surprise as to the testimony, or made a motion for a continuance or passing of the case until the witness Adams could be secured or his deposition taken. This was, however, recited in the motion for a new trial.

The trial proceeded to a judgment in favor of the plaintiff. The defendant then moved the court to set aside the judgment and grant a new trial, and among other grounds assigned the following:

"The defendant developed on examination of said witnesses that they had only received their subpoenas a day or two before the trial, and that at the time Mrs. Shirley died, and also when she was found near the track, they were working at No. 3 mines of the Corona Coal & Iron Company. Defendant telephoned on Friday evening to the offices of the Corona Coal & Iron Company, and found that their pay roll for the day that Mrs. Shirley was found on the railroad track showed that both witnesses were at work that day, but that the person who made said pay roll, to wit, George Adams, was out of the state. Defendant arranged for one of the employés of the Corona Coal & Iron Company who knew the handwriting of the said George Adams to bring the pay roll to court on the following morning. Said employé appeared at court on the said Saturday morning with the pay roll, and after proving that said pay roll was in the handwriting of

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