Sloss-Sheffield Steel & Iron Co. v. Willingham

Decision Date10 October 1940
Docket Number6 Div. 712.
PartiesSLOSS-SHEFFIELD STEEL & IRON CO. v. WILLINGHAM.
CourtAlabama Supreme Court

Rehearing Denied Dec. 12, 1940.

Certiorari to Court of Appeals.

Petition of Sloss-Sheffield Steel & Iron Company for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Sloss-Sheffield Steel & Iron Co. v. Willingham, 199 So. 15.

Writ granted.

Kingman C. Shelburne and Bradley, Baldwin, All & White, all of Birmingham, for petitioner.

Clifford Emond, of Birmingham, for respondent.

THOMAS Justice.

This is a petition for certiorari to review the action of the Court of Appeals.

The respective briefs of counsel on both appeals (this one and that in Sloss-Sheffield Steel & Iron Co. v. Peinhardt Ala.Sup., 199 So. 33, show that same pleading, in legal effect, and facts in evidence.

In Sloss-Sheffield Steel & Iron Co. v. Peinhardt, supra, it was held that "there was error in declining to give the general affirmative charge requested in writing by defendant." It was held that the evidence showed no negligent operation by defendant of its train with which the plaintiff collided; and on rehearing it was held that no subsequent negligence was shown. The Court of Appeals failed to follow this decision. Hence the present review by certiorari.

The rule as to the giving or refusing of the affirmative charge need not be repeated. McMillan v. Aiken, 205 Ala 35, 88 So. 135; Louis Pizitz Dry Goods Co. v Waldrop, 237 Ala. 208, 186 So. 151; Sloss-Sheffield Steel & Iron Co. v. Peinhardt, supra.

The power and duty of this court to review such action on the part of the Court of Appeals is of organic (Constitution, § 140) and statutory law. Code, §§ 7318, 10276; 14 Amer.Juris. p. 461.

In Ex parte Louisville & Nashville R. R. Co., 176 Ala. 631, 636 637, 58 So. 315, 317, this court declared: "It is sufficient to say that this court will exercise its powers cautiously and sparingly and only in extreme cases, not necessary to enumerate, and when not covered by the following instances. We will, however, invariably and unhesitatingly, by certiorari or other writs, superintend and control the Court of Appeals so as to compel action within its jurisdiction and prevent action beyond its jurisdiction, as well as to the extent of preserving uniformity and harmony between its decisions and those previously laid down by this court. * * *

" 'Without attempting to specify the reasons that may be sufficient to justify us in exercising the power in other cases, we are of the opinion that it may be resorted to in the following instances: First, when the Court of Appeals is without jurisdiction to review the judgment in question; second, when in a clear case it refuses to be guided or controlled by the law as laid down in the prior decisions of this court. In this event, it would become our imperative duty to resort to it, in order to enforce uniformity of decision in the appellate courts of the state.' "

And of the situation presented, counsel for petitioner aptly observes, that where two cases are consolidated for the purpose of trial and are tried together and on appeal of each of said causes, the Supreme Court holds that in one of the cases the general affirmative charge should have been given for the defendant, the Court of Appeals, to which the other case is taken, where the evidence is identical and the issues the same in legal effect, has no alternative except to follow the decision of the Supreme Court. Such is the rule of the well-understood decisions of the Supreme Court and of the Court of Appeals. Rogers v. State, 239 Ala. 1, 193 So. 872; Code, §§ 7318 and 10276; Great A. & P. Tea Co. v. Crabtree, 27 Ala.App. 457, 173 So. 894; Fidelity & Casualty Co. of New York v. Raborn, 27 Ala.App. 458, 173 So. 895; Thornhill v. State, 28 Ala.App. 527, 189 So. 913; American Equitable Assurance Co. of New York v. Bailey, 25 Ala.App. 303, 147 So. 446.

It may be said here that the Court of Appeals believed from its record and the established rule that obtains that error had intervened in the Supreme Court as declared in the companion case of Sloss-Sheffield Steel & Iron Co. v. Peinhardt, supra. However this may have been, it was the duty of the Court of Appeals to follow the announcement of this court. It may be observed that this court is now examining the facts of the two cases before all the justices to a correct application of the rules that govern in this appellate jurisdiction.

In the former opinion it was indicated that where the facts bearing on the issues in dispute and the evidence touching the same present a reasonable difference of opinion, it is a question for the jury to decide. Louis Pizitz Dry Goods Co. v. Waldrop, supra; McMillan v. Aiken, supra. But where the evidence permits of but one reasonable conclusion "to be drawn by reasonable men," the question of "proximate cause" is to be determined by the court as one of law. The Supreme Court followed the latter rule in the Peinhardt case, supra.

The question here is whether or not the general affirmative charge should have been given in the Willingham case, which was a question of law as presented by both appeals on like pleading and evidence.

Therefore, in considering the Willingham case, the Court of Appeals had no alternative but to follow the holding of the Supreme Court of Alabama in the Peinhardt case, supra.

The fact that the Supreme Court of Alabama held that the defendant was entitled to the general affirmative charge in the Peinhardt case means that the testimony in the record of said case was not susceptible of other interpretation by reasonable men.

It should be remembered that the Peinhardt case and the Willingham case are not cases involving a driver and a passenger. The cases involve rights of recovery of the driver and of the owner of the truck, who was the employer of the driver,--the driver acting within the line and scope of his employment at the time of the collision.

In City of Birmingham v. Latham, 230 Ala. 601, 606, 162 So. 675, 678, Mr. Justice Gardner (now the Chief Justice) observed of the definitions of results of reasonable sequence, according to the ordinary course of events, that "These definitions are based upon the theory that while a person is expected to anticipate and guard against all reasonable consequences, yet he is not expected to anticipate and guard against that which no reasonable man would expect to occur." Western Ry. Co. v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316, 38 Am.St.Rep. 179; Holt v. Fountain, 218 Ala. 661, 120 So. 149; Louisville & N. R. Co. v. Quick, 125 Ala. 553, 28 So. 14; Ruffin Coal & Transfer Co. v. Rich, 214 Ala. 633, 108 So. 596; Armstrong v. Street Ry. Co.,

123 Ala. 233, 26 So. 349; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Vaughn v. Dwight Mfg. Co., 206 Ala. 552, 91 So. 77 * * *.

"When the facts are such that reasonable men must draw the same conclusion, the question of proximate cause is one of law for the courts. The above-noted authorities suffice as illustrative of this rule. Generally, the question is one for the jury. Morgan Hill Paving Co. v. Fonville, supra."

The plaintiff introduced in evidence interrogatories and answers propounded to defendant and thereby vouched for the correctness of such evidence. Equitable Life Assurance Society v. Welch, Adm'r, 239 Ala. 453, 195 So. 554; Louisville & Nashville R. Co. v. Scott, 232 Ala. 284, 167 So. 572; Peterson v. State, 227 Ala. 361, 150 So. 156. The evidence was to the effect that the truck collided with or "ran against the side of the last car of the train * * * composed of locomotive and two cars"; that the point of contact was "with the last car on the right hand side"; that there was no notice or warning to the engineer "that plaintiff was going to crash, or might likely crash into the side of the train"; that the "vehicle in which plaintiff was riding from the crossing where the accident occurred, when your engineer and/or fireman first saw the vehicle approaching the point of such collision" was something like "a block away"; that no signals "were given in anticipation of any possibility of a collision, or the crashing of plaintiff's truck into the side of the rear car of the train, as the crew had no notice that he might likely crash into the train and did not anticipate any such act. Regular crossing signal was given, with bell and whistle just before locomotive stated (started) over the crossing, and at that time the way was clear for the train to cross and plaintiff and his truck were coming North, and after the train got partly across with last car still on crossing, plaintiff crashed into last car. * * *" Defendant further answered as follows: "No whistle was blown in anticipation of the crash or immediately before the crash, but the regular crossing signal was blown shortly before the engine entered the crossing."

In answer to the question, "Were there any box cars, freight cars, passenger coaches or other sort of cars standing on any of the tracks at or near the point where said collision occurred at said time, and if so, give the location of each of such cars with reference to the said public road where said collision took place and with reference to the passenger and/or freight depot of the defendant nearest to the point of such collision, or the next regular stopping place where defendant was to stop said train," the defendant said "No."

And further the question "If you state that you did not have a watchman at said crossing, then state whether or not you had a bell or light to give any signal or warning to the driver of the motor truck in which plaintiff was riding, of the approach of said train. If so, state (a) which...

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