Western Ry. of Alabama v. Turrentine

• Decision Date: 23 November 1916
• Docket Number: 5 Div. 613
• Citation: 73 So. 40,197 Ala. 603
• Parties: WESTERN RY. OF ALABAMA v. TURRENTINE.
• Court: Alabama Supreme Court

73 So. 40

197 Ala. 603

WESTERN RY. OF ALABAMA v. TURRENTINE.

5 Div. 613

Supreme Court of Alabama

November 23, 1916

Appeal from Circuit Court, Macon County; S.L. Brewer, Judge.

Action by Edwyna Turrentine against the Western Railway of Alabama for damages for injuries while a passenger. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Barnes & Brewer, of Opelika, for appellant.

H.P Merritt, of Tuskegee (C.A. De Bardeleben, of Tuskegee, on the brief), for appellee.

SAYRE J.

Count 5 of the complaint, demurrer to which was overruled, does not allege that defendant wantonly or intentionally injured plaintiff or caused her to be injured along with a statement of the means used to accomplish that result, but it alleges in substance, that defendant wantonly or intentionally left or permitted a hole or opening in the platform of its passenger station at Milstead at a point in the platform that was "continually, generally, and largely used by passengers," transferring from defendant's depot or premises to another railroad, and this notwithstanding the hole or opening was not safeguarded by a light or otherwise and defendant knew that plaintiff was traveling that way in the nighttime. The facts alleged may be reconciled with a theory of mere negligence or inadvertence in the co-ordination of the converging agencies that must have contributed to the result complained of; the inference of wantonness does not necessarily follow upon the facts alleged; and it is entirely clear that the circumstances averred do not justify an inference of intentional wrong, which, it is to be inferred, the pleader intended to charge in the alternative in this count. L. & N.R.R. Co. v. Sharp, 171 Ala. 212, 55 So. 139; Martin v. U.S.N. Ry. Co., 163 Ala. 215, 50 So. 897; L. & N.R.R. Co. v. Orr, 121 Ala. 489, 26 So. 35. But the question whether this count charged wanton or intentional wrong or simple negligence merely was beyond the reach of the grounds of demurrer assigned by defendant; for upon any reasonable construction of the count it stated a cause of action, an actionable breach of legal duty, a case of simple negligence at least, and the demurrer should have been overruled, as it was.

The case went to the jury on counts 3 and 5 of the complaint, and the court's oral charge to the jury makes it plain that count 5 was considered by the court as charging wanton or intentional wrong. Upon the count so considered our opinion is that defendant was due the affirmative charge requested by it in writing; this for the reason that, in the judgment of this court, a finding of wantonness or intentional wrong on the part of defendant was not warranted by the evidence, but only a finding of negligence merely in leaving temporarily unguarded by light or otherwise--it may have been for one night only--a hole or opening which was caused and suffered to exist by reason that the platform was undergoing repairs the sole purpose of which was to make it more fit for the uses for which it was intended. But upon the count, as we think it must be construed, the question was one for the jury, and the special charge was properly refused.

There was error in allowing the plaintiff to call upon the witness Dr. Smith to affirm or deny that upon the occasion of his...