Southern Ry. Co. v. Wideman

• Citation: 119 Ala. 565,24 So. 764
• Parties: SOUTHERN RY. CO. v. WIDEMAN.
• Decision Date: 29 October 1898
• Court: Supreme Court of Alabama

24 So. 764

119 Ala. 565

SOUTHERN RY. CO. v. WIDEMAN.

Supreme Court of Alabama

October 29, 1898

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by Hiram Wideman, as administrator of the estate of John G Patton, deceased, against the Southern Railway Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Head J., dissenting.

The complaint contained two counts. As to the first count, the court gave the general affirmative charge in favor of the plaintiff. The remaining count, and the one on which the trial was had, charged that the "defendant, through its servant or agents, recklessly and wantonly or intentionally knocked or shoved plaintiff's said intestate from said train while the same was in rapid motion, and in consequence thereof said intestate was so injured that he died." The defendant pleaded the general issue, and issue was joined on this plea, upon which the trial was had. It was shown by the evidence that at Brookside, a station along the defendant's road, the plaintiff, who had bought a ticket from Brookside to Birmingham, boarded a freight train for the purpose of coming from said station to Birmingham; that to this freight train there was attached a caboose for the carriage of passengers, but that the plaintiff's intestate did not get into the caboose with the other passengers, but instead got upon one of the other cars, and remained there until the accident occurred. None of the passengers in the caboose and none of the trainmen saw the accident, or had any knowledge what caused it, except Gibson who was the flagman on the train. The only other persons who testified to having seen the accident were Thad Parrish and Nelson Brown. Each of these men testified that they were on top of one of the other cars of the train, at different parts, and saw the accident. These two witnesses were the principal witnesses introduced for the plaintiff, and they testified that Gibson, the flagman, who was on top of the train, shoved, pushed, or knocked Patton off of the train and that in doing so he was acting under instructions from the conductor to him not to let any tramps ride on the train. Gibson, the flagman, as a witness for the defendant testified that, upon seeing the plaintiff's intestate riding upon one of the freight cars, he told him that he was in a dangerous position, and advised him to go back into the caboose, and that Patton stated that he would do so as soon as the train stopped, and that just at that time the train gave a sudden jerk or lurch, and that Patton lost his balance, and fell from the cars, and was run over.

After the court had given its general oral charge to the jury, the defendant separately excepted to the following portions of said charge: (a) "Well, now, gentlemen of the jury, if a brakeman is told by one having authority from the corporation to tell him to let a certain person ride and not to let other persons ride, and he is charged by his instructions with the duty of determining who should ride and who shouldn't ride, and in attempting to carry out those instructions he willfully injures a person in trying to keep him from riding, then he is acting within the line and scope of his authority; and, if that act is willful and wrongful, the railroad company is liable for the result." Defendant also excepted to the following part of the oral charge: "If he hasn't any authority (if the brakeman hasn't any authority) to put people off the train (tramps, hoboes, or anybody else), then, if he undertakes to put anybody off the train, no matter how he does it, with what intention he does it, with what violence he does it, or with what disastrous effects he does it, the company is not responsible for the consequences, because he wasn't charged, by the company, to do such an act; and it would be unreasonable and unjust to hold the company liable for the acts of an agent when he is doing something he is not authorized to do. It would be unjust to expect the corporation to hold itself liable for things that an agent does that he is not expected to do. And so I say, if it was not the duty of the brakeman to put people off the train, then if the brakeman does do it, and in doing it does a willful, wrongful, and fatal act, then the corporation is not liable for that act of a brakeman." (b) "But if the brakeman is charged with the duty of letting certain persons ride, and putting certain persons off, and in the attempt to carry out those instructions he does a wrongful act intentionally, although he may be mistaken in his idea of whether or not the man he is attempting to put off should be put off, yet if he is charged with the duty of determining who should be put off and who should stay on, and he attempts to put anybody off, rightfully or wrongfully, then he is acting in the line and scope of his duty. He may not be doing his duty. If he puts them off wrongfully, and in such manner as would possibly injure them, he is acting wrongfully; and still, though he violates his duty, he is acting within the scope of his duty,-that is to say, he is acting within the territory covered by his instructions. He is exercising his judgment in determining the matter that the corporation has left to his judgment to determine; and, if he exercise that judgment wrongfully, still the company is liable if, as a result of the exercise of that judgment, he does an act that is wrongful, and that is willfully injurious to another."

The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (7) "If the jury believe from the evidence that Gibson, the flagman, did not put the deceased, Patton, off the train because Patton was where he had no right to be, or that Gibson did what he did, not in the interest of, nor in the prosecution of, the business of the defendant, but acted merely willfully or maliciously, the jury should find a verdict for the railroad company." (8) "The jury cannot find a verdict for the plaintiff unless the evidence reasonably satisfies their minds that what Gibson did with reference to deceased, Patton, was done in the prosecution of the railroad company's business; and if they believe that Gibson did not act in the prosecution of the company's business, but acted simply wantonly, or simply from malicious motives, their verdict must be for the defendant." (10) "If the jury believe from the evidence that Patton had a ticket entitling him to ride from Brookside to Birmingham on the train from which he fell or was thrown, and that he was not a tramp, trespasser, or hobo, and that Gibson knew such to be the case, and knew that Patton was entitled to ride as a passenger from Brookside to Birmingham on that occasion but that Gibson nevertheless, with such knowledge, merely wantonly or maliciously threw Patton off the train, and not in the prosecution of the duties with which he was then and there intrusted on the train, the jury should find a verdict for the defendant." (12) "If the jury should believe the defendant liable for the killing complained of, they have the discretion to impose just such damages as they think proper to punish the railroad company, without reference to the injury to the family of the deceased or to their feelings; but the jury may, in their sound discretion, and governed by the evidence, award less damages than the amount they might consider as just compensation to the family of deceased. And if the jury believe from the evidence that the only wrong complained of or committed was done by a brakeman in the defendant's service, and that the defendant had good reason to believe that said brakeman was a fit and suitable person to perform the duties of the service, and that, though he was intrusted on that occasion with the duty of ejecting persons from the defendant's train, the defendant had had no previous reason for believing that Gibson would act wantonly or...