Southern Ry. Co. v. Cunningham

• Decision Date: 02 July 1907
• Citation: 152 Ala. 147,44 So. 658
• Parties: SOUTHERN RY. CO. v. CUNNINGHAM.
• Court: Alabama Supreme Court

44 So. 658

152 Ala. 147

SOUTHERN RY. CO. v. CUNNINGHAM.

Supreme Court of Alabama

July 2, 1907

Appeal from Circuit Court, Madison County; S. S. Pleasants, Special Judge.

Action by O. T. Cunningham against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Dowdell J., dissenting.

The nature and character of the action and the facts upon which the opinion is rested sufficiently appear therein. The defendant excepted to the following portion of the oral charge to the court: "(1) The defendant, under the law if you find that plaintiff was a passenger, was bound to exercise the strictest vigilance and the highest degree of care in receiving him as a passenger, conveying him to his destination, and setting him down safely, that the means of conveyance employed and the circumstances would permit. (2) And I charge you, in this connection, that if you should find from the evidence that plaintiff was entitled to recover, and that his earning capacity was totally destroyed, in ascertaining what sum you will allow him for future disability, you may take into consideration the mortality tables which have been offered in evidence as showing what his life expectancy is, and allow him to such future disability such a sum as, put at interest, will produce, by adding to it a part of the principal each year, an amount equivalent to his earning capacity each year during his life expectancy and consume the principal at the end of his life expectancy." Charge B was refused to defendant, and is as follows: "If the jury believe from the evidence that there was no negligence on the part of defendant or its employés in the operation of the trains which collided, and said collision was caused by the parting of one of said trains through no defect in the appliances thereof, and that those in charge of said train promptly and properly used all means known to skillful trainmen to prevent the accident they must find for the defendant." There was judgment for plaintiff, and defendant appeals.

Humes &amp Speake, for appellant.

J. F. Stallings, for appellee.

TYSON C.J.

The complaint originally contained two counts. It was sought by each of them to recover damages for personal injuries suffered by plaintiff, caused by the negligence of the defendant while he was a passenger upon one of its cars. In each it is alleged that the injury occurred on, to wit, the 3d day of March, 1903, near Huntsville, in Madison county, in this state. In the first the character of the injuries inflicted is described in no other way than by the word "personal." In the second it is alleged that plaintiff received personal injuries by having his "back severely sprained and bruised, and his legs, hips, and arms bruised and otherwise injured." More than one year after the filing of the complaint, and, of course, after the cause of action arose, the plaintiff was permitted to amend his complaint by adding a third count. The only material differences between this count and the second may be stated to be these: In this one the time of the occurrence of the alleged injury is alleged to have been on the 23d day of March, 1903, and the injuries are alleged to be permanent, and damages for mental pain and expense for medicine and medical attention in the effort to heal and cure the injuries are claimed. The amendment was objected to by defendant, and the plea of the statute of limitations of one year was interposed as a defense to the added count. It is insisted that defendant should have been allowed the benefit of this defense, because the added count was a departure from the cause of action set up in the first and second counts; in short, that it introduced a new cause of action or claim. We do not think so. We regard the amended count as merely curing a defective description of the cause of action as laid in the two original counts, and therefore related back to the commencement of the suit. Hess v. Birmingham Ry., L. & P. Co. (Ala.) 42 So. 595; Chambers v. Talladega Real Estate & Loan Association, 126 Ala. 296, 28 So. 636; Manchester Fire Assurance Co. v. Feibelman, 118 Ala. 308, 23 So. 759. If it be true, as contended by appellant, and which we regard as correct, that the date averred in the first and second counts was material, then no recovery was or could have been had upon them, and the overruling of the demurrer to them, if error, was clearly innocuous. Going v. Ala. Steel & Wire Co., 141 Ala. 537, 37 So. 784.

Numerous...