Turbeville v. Mobile Light & R. Co.

• Decision Date: 13 March 1930
• Docket Number: 1 Div. 547.
• Citation: 127 So. 519,221 Ala. 91
• Parties: TURBEVILLE v. MOBILE LIGHT & R. CO.
• Court: Alabama Supreme Court

127 So. 519

221 Ala. 91

TURBEVILLE v. MOBILE LIGHT & R. CO.

1 Div. 547.

Supreme Court of Alabama

March 13, 1930

Rehearing Denied April 17, 1930.

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Action for damages for wrongful death by Peter W. Turbeville, as administrator of the estate of Earl Y. Turbeville, deceased against the Mobile Light & Railroad Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Jesse F. Hogan, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

BROWN J.

Count 10A, to which a demurrer was sustained, to construe it most strongly against the pleader, as must be done on demurrer alleges that plaintiff's intestate was upon the defendant's track upon which the defendant through its servants was operating a street car; that said car, without negligence on the part of the defendant's servants, was brought to a stop upon or against the body of said intestate and "the safety guard attached to said car fell across the body of the said Earl Y. Turbeville with heavy pressure and was suffocating him; that said servants of the defendant in charge of said car having knowledge of the perilous situation of plaintiff's intestate under said car, as aforesaid, and while acting within the line and scope of their employment, negligently failed to back said car from or to lift the front end of said car off of the body of the said Earl Y. Turbeville, although there was ample time to have done so and saved the life of the said Earl Y. Turbeville; and that as a proximate consequence of said negligence the said Earl Y. Turbeville was killed."

These averments put plaintiff's intestate in the attitude of a trespasser who through his own negligence is placed in a position of imminent peril, without fault or negligence on the part of the defendant or its servants.

While it may be conceded that these circumstances imposed on those present the duty, from the standpoint of common humanity, to use their best judgment in doing what they could to relieve the unfortunate victim from his peril, we know of no principle of municipal law that imposed on the defendant or its servants a legal duty to relieve him by backing the car off his body or lifting it up so as to relieve his peril. It certainly could not be said that such duty rested on a mere bystander who witnessed his misfortune and who was in no way legally responsible for his predicament. If this be so, what reason can be found in the law to say that the defendant or its servants were under duty to act, when they were guilty of no wrong or negligence in producing or bringing about the unfortunate situation?

In Griswold v. Boston & M. R. R., 183 Mass. 434, 67 N.E. 354, 355, where the plaintiff, a trespasser who had been caught by the wheels on the tender of defendant's locomotive, without fault or negligence of the defendant's servants, sought to recover damages for delay in releasing her from her situation of peril and suffering, the court observed: "There is another view of this case, which strikes at the foundation of the plaintiff's claim. Her counsel has referred us to no case which supports the proposition that, if a person is injured through no fault of a railroad company, the latter owes a legal duty to the person injured to assist him. There is, of course, a moral duty, but in performing that duty the company is not liable if one of its servants does not use his best judgment in affording the necessary assistance."

And in Allen v. Hixson, 111 Ga. 460, 36 S.E. 810, an action by the servant against the master, in which damages were claimed for failure of the master to aid the servant, whose arm had been caught in machinery, without fault or negligence of the master, the court observed: "Being in no way responsible for the unfortunate occurrence, the master cannot be said to be guilty of a tort if he does not promptly take active steps in coming to the rescue. The only duty arising under such circumstances is one of humanity, and for a breach thereof the law does not, so far as we are informed, impose any liability."

While it must be conceded that the defendant's servants in charge of the street car were under duty to the defendant to remove the plaintiff's intestate from the track so that they might proceed, if this could be done without inflicting further injury on him, and in doing so would be acting within the line and scope of their employment, if, in discharging this duty, they negligently caused or accelerated the death of plaintiff's intestate, the company would be liable. American Car & Foundry Co. v. Inzer (Ind. Sup.) 86 N.E. 444; Northern Central R. Co. v. State, 29 Md. 429, 96 Am. Dec. 545; Gates v. Chesapeake & Ohio R. Co., 185 Ky. 24, 213 S.W. 564, 5 A. L. R. 507.

But mere failure of the servants of the defendant in charge of the street car, after it had been stopped by them, to take prompt steps to extricate plaintiff's intestate from his perilous situation under the safety guard, brought about solely by his own negligence, and without negligence on the part of defendant's servants, there being no legal duty on the part of the defendant to so extricate him, was, as a matter of law, not an act or omission within the line and scope of their employment. Allen v. Hixson, supra; Union Pacific Ry. Co. v. Cappier, 66 Kan. 649, 72 P. 281, 69 L. R. A. 513.

In our case of Louisville & Nashville R. Co. v. Young, 168 Ala. 551, 53 So. 213, and Weitzman v. Nassau Electric R. Co., 33 A.D. 585, 53 N.Y.S. 905, liability was predicated on the hypothesis that the evidence authorized a finding by the jury that the servants of the railroad company engaged in the operation of the locomotive, after becoming aware of the peril, negligently failed to take proper steps to check the movements of the locomotive and avert the injury.

We are of opinion that the demurrers to count 10A, were sustained without error.

The case was submitted to the jury on counts 7, 8, and 9 of the complaint and the plea of the general issue. Count 7 alleges that defendant's motorman, "Gene Touart, after discovering the perilous situation of said intestate, and acting within the line and scope of his employment, negligently operated said street car, and as a proximate consequence said car collided with the said Earl Y. Turbeville," proximately causing his death. Counts 8 and 9 ascribe his death to the "willful, wanton, or intentional" conduct of the motorman in running the car against plaintiff's intestate.

The evidence shows that defendant, at the time of the catastrophe, was engaged in operating street cars between Prichard and Chickasaw, in Mobile county; that its car line leads in a northerly direction from Prichard toward Chickasaw, and crosses Turner road, a public highway, from one-half to three-quarters of a mile south of Chickasaw; that the usual stopping place to take on or discharge passengers is immediately north of the road crossing; that near this road crossing there is a community of some forty or fifty houses, some of these houses being from one to two blocks distant from the car line, and others from fifty to a hundred yards therefrom, as stated by one of the witnesses, a "pretty thickly settled" community.

Plaintiff's intestate boarded defendant's outbound car, in charge of Gene Touart as motorman and J. C. Higgins as conductor, going toward Chickasaw, after dark, on November 25, 1926, and was then in an intoxicated condition, and was assisted in getting aboard by one or two men.

When the car stopped immediately north of Turner road to discharge passengers, plaintiff's intestate left the car with others, and manifested his drunken condition by standing in the way of the car until he was requested by the motorman to move, and by other acts of indecent behavior. After he moved out of the way, the street car proceeded on its way to Chickasaw, leaving said intestate where he alighted from the car.

On the return trip, which, according to the evidence, was from fifteen to...