Southern Ry. Co. v. Bunt

• Decision Date: 13 February 1902
• Citation: 32 So. 507,131 Ala. 591
• Parties: SOUTHERN RY. CO. v. BUNT. [1]
• Court: Alabama Supreme Court

32 So. 507

131 Ala. 591

SOUTHERN RY. CO. v. BUNT. ^[1]

Supreme Court of Alabama

February 13, 1902

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action for personal injuries by John B. Bunt against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

After the introduction of all the evidence, the bill of exceptions contains the following recital: "Counsel for the plaintiff stated to the court and jury that they did not claim a recovery in this cause upon the first, second, third fourth, or sixth counts of the complaint, but only claimed a recovery on the fifth count of complaint, charging wanton negligence or intentional injury to the plaintiff by Sam Watkins, who was the engineer of the engine attached to the train by which the plaintiff was injured." The defendant requested the court to give, among others, the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) The court charges the jury that, if they believe all the evidence in this case, they must find a verdict for the defendant." "(8) The court charges the jury that, if they should find a verdict for the plaintiff, they can only award him actual damages. Plaintiff in this case is not entitled to vindictive or punitive damages." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Smith &amp Weatherly, for appellant.

Bowman & Harsh, for appellee.

DOWDELL J.

The appellee, John B. Bunt, sued the appellant railroad company to recover damages for personal injuries sustained by him while in the employment and service of said railroad company as a brakeman. The complaint contained six counts, all of which charged simple negligence, except the fifth and sixth in which it was attempted to charge wantonness. Upon the conclusion of the evidence in the case the plaintiff stated to the court and jury that he would not claim a recovery on any of the counts in the complaint except the fifth count. The abandonment by the plaintiff of all the counts in the complaint except the fifth eliminates from consideration the rulings of the court relating to the counts of the complaint thus abandoned, so that, if there was error in the first instance in the rulings upon demurrers, such errors were rendered harmless by the action of the plaintiff. His announcement of the abandonment of all of the other counts in the complaint except the fifth, for all purposes of the trial, was in its effect the equivalent of an amendment of the complaint by striking out all of said abandoned counts. Iron Co. v. Andrews, 114 Ala. 243, 21 So. 440. The question of error without injury, as here presented, is different from that presented in the case of Railroad Co v. Weems, 97 Ala. 270, 12 So. 186, where the complaint contained but one count, in which several different causes of action were laid. There was no abandonment in that case of any of the causes of action laid in the complaint by the plaintiff, and the reasoning there stated as to what pleas the defendant might have filed, if but one cause of action had been laid and relied on in the complaint, is not applicable here, as in the form of pleading here adopted the defendant was in no wise prejudiced as to any defense which might have been set up to the fifth count; and we think the rule as laid down in Iron Co. v. Andrews, supra, controls in the present case.

The fifth count, as originally framed, was demurred to, and demurrer confessed, and thereupon it was amended; and as amended it averred that "the engineer of said engine wantonly or intentionally caused or allowed said engine to propel said car against said other car with too great force with knowledge or notice [italics are ours] that plaintiff was between said cars, and in great danger from said car being propelled against said other car with such force." The averment in this count in the alternative, "with knowledge or notice," rendered it bad, as counting on wantonness. Wantonness in the doing of, or omission to do, an act, the probable result of which will be to injure, can only be predicated upon actual knowledge of existing conditions attending the act or omission that causes the injury. Notice in such cases is not the equivalent of actual knowledge. Brown v. Railroad Co., 111 Ala. 275, 19 So. 1001. In Railroad Co. v. Martin, 117 Ala. 367, 23 So. 231, it was said: "Unless there was a purpose to inflict the injury, it cannot be said to have been intentionally done; and unless an act is done, or omitted to be done, under circumstances and conditions known to the person, that his conduct is likely, or probably will result in injury, and through reckless indifference to consequences he consciously and intentionally does a wrongful act, or omits an act, the injury connot be said to be wantonly inflicted. These principles have been frequently declared by this court." In Glass v. Railroad Co., 94 Ala. 581, 10 So. 215, again speaking of what constitutes wantonness and intention to do wrong on the part of the employés of a railroad company, it was said: "This wantonness and intention to do wrong can never be imputed to them unless they actually know--not merely ought to know--the perilous position of the person on the track, and, with such knowledge, fail to resort to every reasonable effort to avert the disastrous consequences." To the same effect are the following case...