Southern Ry. Co. v. Cunningham

• Court: Supreme Court of Alabama
• Writing for the Court: TYSON, C.J.
• Citation: 152 Ala. 147,44 So. 658
• Decision Date: 02 July 1907
• Parties: SOUTHERN RY. CO. v. CUNNINGHAM.

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 & 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,...