Southern Ry. Co. v. Bonner

• Decision Date: 21 November 1904
• Citation: 141 Ala. 517,37 So. 702
• Parties: SOUTHERN RY. CO. v. BONNER. [a1]
• Court: Alabama Supreme Court

37 So. 702

141 Ala. 517

SOUTHERN RY. CO. v. BONNER. ^[a1]

Supreme Court of Alabama

November 21, 1904

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by J. J. Bonner, as administrator de bonis non of the estate of Charles M. Bryan, deceased, against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This suit was originally brought by Pearl O. Bryan, as administratrix of the estate of Charles M. Bryan, deceased against the Southern Railway Company, to recover $30,000 damages for the killing of the plaintiff's intestate. This is the second appeal in the case. 28 So. 445. After the remandment of the cause on the former appeal, the complaint was amended by substituting for the original plaintiff the present appellee, J. J. Bonner, as administrator de bonis non of the estate of Charles M. Bryan, deceased. On the last trial, from a judgment in which the present appeal is prosecuted, the cause was tried, as stated in the opinion upon two counts of the complaint. The substance of these counts are sufficiently shown in the opinion. The facts of the case are substantially the same as presented on the former appeal, to which special reference is here made, with the exception of the testimony of one Arthur Lawrence, who was the fireman on the engine of which intestate was engineer at the time of the accident. Lawrence did not testify on the first trial. The substance of his testimony and the other facts of the case necessary to an understanding of the decision upon the present appeal are sufficiently stated in the opinion.

Upon the introduction of all the evidence 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: "(1) If the jury believe the evidence, they must find for the defendant. (2) If the jury believe the evidence, they cannot find a verdict for the plaintiff under the fourth count of the complaint. (3) I charge you, gentlemen of the jury, that there is no evidence in this case showing willful, wanton, or gross negligence on the part of the defendant's engineer, Mosby, and unless the evidence reasonably satisfies you that the defendant, its agents, servants, or employés, were guilty of willful wanton, or intentional wrong, then your verdict must be for the defendant. (4) I charge you, gentlemen of the jury, that before you can find a verdict for the plaintiff in this case you must be reasonably satisfied from all the evidence in this case that the defendant's engineer, Mosby, ran his train against the engine upon which the plaintiff's intestate was riding with the consciousness that the act which he was committing would likely result in death or injury to the plaintiff's intestate, or some other person on the train or engine of the Louisville & Nashville Railroad. (5) The law would not authorize or justify you in assessing damages against this defendant, however negligent it may have been, if Bryan was himself guilty of proximate contributory negligence. (6) I charge you that the evidence in this case does not show willful, wanton, or intentional negligence on the part of the defendant's agents or employés. (7) You cannot, by your verdict, punish the defendant at all, or compel the defendant to pay any damages in this case, if the evidence also satisfies you that Bryan was not as careful as he should have been in approaching and attempting to pass the crossing, and that thereby he directly and proximately contributed to cause his own misfortune." "(9) The court charges the jury that if you believe all the evidence in this case you cannot find for the plaintiff under the first count of the complaint. (10) I charge you, gentlemen of the jury, that if you believe the evidence in this case, before you can find a verdict for plaintiff, you must find that the defendant's servants were guilty of wanton, willful, or intentional negligence. (11) I charge you, gentlemen of the jury, that under the evidence in this cause you must find that plaintiff's intestate was guilty of contributory negligence. (12) I charge you, gentlemen of the jury, that under the evidence in this case the plaintiff's intestate was guilty of contributory negligence, which was the proximate cause of the injury which is alleged to have caused his death, and the plaintiff cannot recover under the first count of the complaint." "(14) To constitute willful injury there must be a design, purpose, or intent to do wrong and inflict the injury, and unless the evidence satisfies the mind of each individual member of the jury that the defendant's engineer, with design and purpose and intent to do wrong and inflict injury on some one on the train of the Louisville & Nashville Railroad Company, then you cannot find for the plaintiff on the fourth count of the complaint. (15) I charge you, gentlemen of the jury, that unless the evidence reasonably satisfies the minds of each individual member of the jury that the defendant, its agents, servants or employés, ran its engine and cars across the crossing at which it is alleged the plaintiff's intestate was killed with the consciousness that the act of running said train across the crossing would probably result in injury to some person on the train of the Louisville & Nashville Railroad, then the plaintiff cannot recover. (16) I charge you that before you can find a verdict for the plaintiff under the fourth count of the complaint the evidence must reasonably satisfy the minds of each individual member of the jury that the defendant's engineer, Mosby, ran his train against the L. & N. train with the present abiding consciousness, and the willingness and design and intent to do wrong and inflict injury on some one on the train of the L. & N. Railroad Company. (17) Unless Bryan knew the way to be clear before he went upon the crossing, the plaintiff cannot recover, unless you believe from the evidence that Mosby, by using all the means at hand to avoid the collision, after discovering, or after he ought to have discovered, the peril, could not have avoided the collision. (18) Under the evidence and issues in this case there can be no recovery by the plaintiff based on the defendant's failure to have its engine provided with the usual headlight. (19) The usual and customary purpose of a headlight is to enable the engineer of the engine provided with the headlight to see the track ahead; and if you believe from the evidence that Engineer Mosby, by keeping a careful lookout ahead, by means of a proper headlight, would not have discovered any obstruction on the crossing, or the approaching engine on the other track, in time to have avoided the collision, you cannot find a verdict for the plaintiff on account of the absence of a headlight. (20) I charge you, gentlemen of the jury, that if you believe from the evidence that defendant's train was not equipped with a sufficient headlight, the fact that it did not have a sufficient headlight constituted only simple negligence, and would not entitle the plaintiff to recover in this suit. (21) The court charges the jury that it was the duty of plaintiff's intestate to know that the crossing was clear before he undertook to cross, and not to proceed until he knew the way was clear, and, if he failed in this duty, and was thereby injured, he was guilty of contributory negligence, and plaintiff cannot recover in this suit. (22) I charge you, gentlemen of the jury, that if you believe from the evidence that plaintiff's intestate stopped within 100 feet of the crossing he cannot recover under the fourth count of the complaint, if the evidence satisfies you that he failed to know that the way was clear before attempting to cross, and you further believe from the evidence that the defendant's engineer, Mosby, did not willfully and intentionally run his train...