Sloss-Sheffield Steel & Iron Co. v. Willingham
Decision Date | 10 October 1940 |
Docket Number | 6 Div. 712. |
Parties | SLOSS-SHEFFIELD STEEL & IRON CO. v. WILLINGHAM. |
Court | Alabama 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.
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.
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 * * *.
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 * * *"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 ...
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