Southern Ry. Co. v. Gantt, 8 Div. 533.

• Court: Supreme Court of Alabama
• Writing for the Court: BOULDIN, J. BOULDIN, J.
• Citation: 210 Ala. 383,98 So. 192
• Parties: SOUTHERN RY. CO. v. GANTT.
• Decision Date: 08 November 1923
• Docket Number: 8 Div. 533.

98 So. 192

210 Ala. 383

SOUTHERN RY. CO.
v.
GANTT.

8 Div. 533.

Supreme Court of Alabama

November 8, 1923

Rehearing Denied Dec. 6, 1923.

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action for damages by Thomas Gantt, as administrator of the estate of Jesse Long, deceased, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. [98 So. 193]

S. A. Lynne, of Decatur, for appellant.

Harsh, Harsh & Harsh, of Birmingham, for appellee.

BOULDIN, J.

This is an action for wrongful act, omission, or negligence causing death. Code 1907, § 2486.

In the caption of the complaint, plaintiff is styled: "Thomas Gantt, Administrator of [98 So. 194] the Estate of Jesse Long, Deceased." The body of each count claims damages resulting from the death of "plaintiff's intestate."

The entire complaint is looked to in ascertaining whether the plaintiff sues in his individual or representative character.

The cause of action her can accrue to plaintiff only in his representative capacity. This, under our decisions, is a determining factor. The demurrer to the complaint on this ground was properly overruled. A. C. G. & A. Ry. Co. v. Heald, 178 Ala. 637, 59 So. 461; L. & N. R. R. Co. v. Trammell, 93 Ala. 350, 9 So. 870; Alverson v. Little Cahaba Coal Co., 201 Ala. 123, 77 So. 547.

The first count of the complaint, after showing the plaintiff's intestate was in a position of peril, avers that defendant's servant-

"discovered said peril and after said discovery of said peril negligently *** caused or allowed said train to run upon or against said intestate and cause his death."

The second count is in substantially the same form, substituting "wantonly" for "negligently."

The averments showing the discovery of intestate in a place of peril on or near the track disclosed a condition from which arose the duty to conserve his safety. To negligently or wantonly run the locomotive over him in such case is to disregard that duty. The duty of care being shown, a general averment of negligence or wantonness is sufficient. Southern Railway Co. v. Stewart, 153 Ala. 133, 45 So. 51; L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; Central of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Norwood Transportation Co. v. Crossett, 207 Ala. 224, 92 So. 461.

As to count 1, the point is further raised that the averments showing the intestate to be a trespasser on the track, and not showing him to be unaware of his impending danger, must be taken to concede concurring negligence on his part at the moment of his fatal injury.

The rule is here well established that original negligence in being a trespasser on the track, from which a present danger may arise at any moment, does not imply negligence after the discovery of his impending peril and concurrently with the negligence of the trainmen after they have discovered his peril. Such subsequent, concurring, contributory negligence is defensive. Southern Railway Co. v. Stewart, 153 Ala. 133, 45 So. 51; L & N. R. R. Co. v. Brown, 121 Ala. 221, 25 So. 609; A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 So. 84; A. G. S. R. R. Co. v. Sanders, 203 Ala. 57, 82 So. 17; Snider v. A. G. S. R. R. Co. (Ala. Sup.) 97 So. 210.

It is further insisted that the wanton count is defective in charging that the trainmen wantonly "caused or allowed" the train to run upon the deceased. The point seems to be that the alternative word "allowed" negatives the idea of wantonness. It is clear that wantonness may arise from conscious omission of duty in the presence of imminent danger. Dealing with the case of a moving train bearing down upon a human being, such nonaction is not inaptly expressed by the phrase "wantonly allowed," etc. Code 1907, § 2486; Memphis & Charleston Railway Co. v. Martin, 131 Ala. 269, 30 So. 827.

The demurrers to counts 1 and 2 of the complaint were properly overruled.

On the trial, defendant moved to challenge for cause three jurors appearing on the jury list from which the trial jury was selected. The motion was based on the admitted fact that the jurors were former employees of the Louisville & Nashville Railroad who, at the time of the trial, were out on the general shopmen's strike of 1922. A disqualifying bias or interest in this case against another company, involving alleged negligence of trainmen, could be imputed to these jurors only on merest conjecture. The trial court, so far as the record shows, had no means of knowing any such bias. Mere suspicion, if indulged in, could be applied in favor of defendant, as well as against. One conjecture could be that, in a pending controversy over wages, the employees seeking relief would be interested in lessening the burden of damage claims against the income of their employers. Another, that employees who had broken with another company would be interested in making a friend of this company. A more just view would assume they were engaged in a business controversy in which would enter no desire to cripple or penalize this defendant, but a purpose to do justice in the particular case, if chosen and sworn so to do. The trial court rightly overruled the motion to challenge for cause. Ward v. Meadows, 205 Ala. 432, 88 So. 427.

Defendant's engineer in charge of the train at the time of the accident, testified:

"I know how to run an engine and how to stop one." "I know the best method of stopping an engine."

Stating his action on discovering the man, he said:

"I immediately shut off the steam and applied the emergency brake and sounded the alarm whistle and applied sand."

He was thereafter asked:

"Did you do all that could be done by a skillful engineer when you saw him?" "Did you do all the things that are known to a skillful engineer to stop that engine?"

The court sustained plaintiff's objection to each of these questions. The witness was [98 So. 195] an expert. He had first given in detail the things done to stop the engine. The questions were the equivalent of asking if anything else could have been done by a skillful engineer to aid in stopping the engine. The questions called for legal testimony. Coming as they did they were not objectionable as leading. It is difficult to frame a question in such situation except in direct form calling for an answer of "yes" or "no." There was error in not permitting an answer to these questions. A. G. S. R. R. Co. v. Linn, 103 Ala. 134, 15 So. 508; B. R. L. & P. Co. v. Hayes, 153 Ala. 188, 44 So. 1032; B. R. L. & P. Co. v. Barrett, 179 Ala. 290, 60 So....