Southern Ry. Co. v. Montgomery

• Decision Date: 04 October 1934
• Docket Number: 6 Div. 338.
• Citation: 229 Ala. 456,157 So. 854
• Court: Alabama Supreme Court
• Parties: SOUTHERN RY. CO. v. MONTGOMERY.

157 So. 854

229 Ala. 456

SOUTHERN RY. CO. v. MONTGOMERY.

6 Div. 338.

Supreme Court of Alabama

October 4, 1934

Rehearing Granted Dec. 6, 1934.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages for wrongful death by Mrs. Clint Montgomery, as administratrix of the estate of Clint Montgomery, deceased against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed conditionally.

BROWN J., dissenting.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

W. A. Denson, of Birmingham, for appellee.

THOMAS Justice.

The cause was submitted on motion to strike the bill of exceptions, and on the merits.

The motion to strike the bill of exceptions has been examined and found to be without merit.

The judgment was rendered October 12, 1932; bill of exceptions presented to the trial judge May 9, 1933, signed and allowed of record June 19, 1933; motion for a new trial of date of November 4, 1932, was successively and duly continued to later dates. It is then recited by the record, "On this the 4th day of February, 1933, came the parties by their attorneys, and upon their motion, It is ordered and adjudged by the court that this motion be and the same is hereby continued to February 11, 1933," and, "On this the 11th day of February, 1933, came the parties by their attorneys, and plaintiff objects to hearing of motion on ground that court has no jurisdiction on account of time in which court could hear motion expired at midnight, February 10, 1933; the objection of plaintiff is by the court heard and considered," and "It is ordered and adjudged by the court that this motion be and the same is hereby overruled, and plaintiff excepts to court entering any order on motion, and defendant excepts to court overruling motion."

It is insisted by appellee that under the rule of Oberhaus v. State ex rel. McNamara, 173 Ala. 483, 497, 55 So. 898, 902, the life of the motion ceased to exist "at midnight of February 10, 1933, and was exclusive of February 11, 1933." The question there for decision was the meaning of the Act of August 31, 1909 (p. 305), and it was held that under the act the term of Oberhaus "as jury commissioner," under the appointment made by Governor B. B. Comer, ran "till the first Monday after the second Tuesday in January, 1911." Mr. Justice Somerville adverted to the definition of the word "till," and observed that "The words 'to,' 'till,' and 'until' are synonymous, and are sometimes ambiguous and equivocal in the particular connection in which they occur in provisions for a period of time for the performance of an act, and are therefore construed as exclusive or inclusive according as the subject-matter about which they are used may show the intention in using the words to have been the one or the other."

In McCord v. Lanier, Register, 207 Ala. 663, 93 So. 546, the meaning of a restraining order to desist from further efforts to collect certain costs "until the appeal in said cause shall have been heard and determined" held excluded "all subsequently accruing time after date of final decision."

The case of Johnson v. State, 141 Ala. 7, 37 So. 421, 109 Am. St. Rep. 17, held that under the statute that term of court continued until a certain Saturday, and the day named was excluded from the term by force of the general rule of exclusion; a matter of legislative intent for decision. Standard Oil Co. v. City of Birmingham, 202 Ala. 97, 98, 79 So. 489.

In Richardson v. State, 142 Ala. 12, 39 So. 12, the defendant was given "until January 5, 1905," in which to have the bill of exceptions signed; held "The words 'until January 5th' excluded that day, and consequently the time for signing the bill of exceptions expired on the night of January 4th." 16 A. L. R. 1097, note.

In Montgomery Traction Co. v. Knabe, 158 Ala. 458, 48 So. 501, the question was the term of the city court under the Act of February 28, 1907 (Loc. Priv. & Sp. Laws, p. 300); held the term of court terminated on Saturday night, July 6, 1907; and "until" did embrace Saturday, thus overruling the Johnson Case, supra.

If the motion for a new trial, continued to February 11, 1933, for hearing, may not be heard on that day, but the use of the word to excluded the day named, the time for presentation of appellant's bill of exceptions expired 90 days after October 11, 1932, and the bill so signed would be subject to the motion to strike. Sections 6433, 6434, Code; Stroup v. Alabama Power Co., 216 Ala. 290, 292, 113 So. 18.

The motion to strike the bill of exceptions is to clear up any seeming conflict, if such exist, and invoke a decision of the meaning of the words, " to February 11, 1933," in the last order of the court; whether it gave the right of hearing on the day named. We hold that as to hearing the motion for a new trial, it was the intention of the court to extend the time to the named date, and that it embraced the date of February 11, 1933, for the hearing. The motion for new trial was duly and properly heard on that date; and this motion to strike the bill of exceptions is overruled.

The action was instituted under the homicide statute (section 5696, Code), and resulted in a judgment for the plaintiff.

The question on the pleading was the overruling of appellant's demurrer to count 4, added by way of amendment, declaring for subsequent negligence, and that ruling is assigned as error. However, there is no insistence thereof in argument under the rule that obtains. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

Count 4, for subsequent negligence of the fireman and the engineer, was that on which trial was had and submission to the jury. The gravamen of that pleading is, that the negligence of Griffin, as the engineer, and Newman, as the fireman of the locomotive in question, and at the time and place, "after becoming aware of the peril of said locomotive colliding with plaintiff's intestate, and while acting within the line and scope of their employment, negligently failed to use all of the means at their command to avoid said locomotive colliding with said intestate, when by the use of said means said locomotive would have been prevented from colliding with said intestate, and intestate's death would have been avoided."

For convenience we will try to follow the order of counsel's discussion of the assignments of error in considering the questions duly presented.

Plaintiff's witness Garrett, having testified and cross-examined, was re-examined as follows: "Q. About that time of day I will ask you whether or not people are constantly traveling along there, in other words, just continuously going by there, going and coming, coming toward East Lake and going from East Lake?"

Defendants objected to the question on the ground that it calls for incompetent, irrelevant, immaterial, and illegal testimony, and on the further ground that there was no wanton count. The objection being overruled and exception reserved, the witness answered:

"A. I would answer that in this way: It almost makes it a nuisance to live there with so many automobiles going to and from.

"The witness testified further: There is so much traffic it is mighty near a nuisance to make it a home and live there. I said I knew what an alarm signal was, and I never heard any given on that occasion." (Italics supplied.)

It is the general and cardinal rule that on the admission of evidence it must have a just and reasonable inference or presumption in relation to a material fact involved in the issue on which the jury are to pass, to prove or disprove a material fact in issue. Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389; Karr v. State, 106 Ala. 1, 17 So. 328. Under the fourth count, defendant's declaration for negligence after discovery of peril is predicated on actual knowledge of the peril and the failure to take due and available preventive action to avoid injury to plaintiff's intestate. Emmett v. Alabama Great Southern R. Co., 226 Ala. 310, 146 So. 811; Central of Georgia Ry. Co. v. Bates, 225 Ala. 519, 521, 144 So. 9.

The record fails to disclose that there was a motion to exclude the evidence of the witness Garrett which was the subject of objection by defendant and overruled by the court. It has not been held that under the General Acts of 1927, p. 636, there was no necessity for informing the court of what was expected to be shown by the witness when objection was sustained; or when overruled, that reversible error be the result. Notwithstanding the statute, this court said: "It is commonly ruled by the courts that questions of error in the trial of causes are of judicial, not legislative, cognizance. But, conceding for the argument the competency of the act here in question, we note the fact that it undertakes to define error in the admission of evidence, but does not require the court to reverse judgments for error without injury or to presume facts in order to reach a conclusion of injury. We hold, therefore, that the authority of the cases cited last above still governs this court in the determination of questions raised in this fashion." Flowers v. Graves, 220 Ala. 445, 446, 125 So. 659, 660.

And in Morgan Hill Paving Co. v. Pratt City Sav. Bank, 220 Ala. 683, 685, 127 So. 500, 502,

is the observation: "Without undertaking to define the scope and effect of such statute, we follow the above decision, and hold that it does not repeal the long-settled law of this state, essential to the administration of justice, that error will not be presumed; nor does it repeal the rules of practice, not mentioned therein, to the effect that probable injury must appear."

And in Berry v. Dannelly, 226 Ala. 151, 145 So. 663, 666 the observation is...