Richmond & Danville Railroad v. Greenwood , 99 Ala. 501 ( 1892 )

McCLELLAN, J.

This is an action by Greenwood against the Richmond & Danville Railroad Company and the Savannah & Western Railroad Company, sounding in damages for personal injuries alleged to have been sustained by the plaintiff in a collision between trains of the respective railway companies at a crossing of their respective tracks. The complaint contains three counts. The first and second aver that the collision was the result of negligence and wantonness, and the third counts on simple negligence. Each of the three counts ascribes the injury complained of to the concurring turong of both defendants. Thus : The first count avers that the engine and train on the Richmond 6 Danville road belonged to and were in charge of and being operated by servants of that company; that the engine and train on the Savannah & Western road belonged to and were in charge of, and being operated by servants of that company, and that these servants “carelessly, negligently and wantonly ran. the said engines and trains so under their charge, respectively, as aforesaid, into and against each other upon or near said crossing, and plaintiff was thereby, then and there thrown down and maimed, crushed and bruised,’’ &c., &c., &c. The second count particularizes the negligence charged against the servants of the two defendants, averring it to have consisted on the part of the employees on each train, in a fa ilure to sound the whistle and come to a full stop within one hundred feet of the track of the other road, and in their proceeding to attempt the crossing without knowing the way was clear, and then continues: “and by reason of said negligence on the part of said defendants the said engines and trains then and there collided with each other, upon or near said crossing and plaintiff was then and there thrown violently down and maimed, bruised and otherwise injured,” &c. And the third count is substantially the first with the allegation of wantonness omittedit avers that the injury complained of was caused by the negligence of the servants of both defendants.

It is to be observed that, the complaint in each of its counts relies upon and seeks to recover on account of the separate and distinct wrongs of the defendants respectively : it seeks to enforce a joint liability for acts which were not joint in themselves nor bound together by the tie of a common purpose. It is a very general, if not in principle an universal, rule that this cannot be done : the wrong done must be jointly done in fact by the defendants, or if contributed to by each, a joint purpose must be imputable to them before they can be said to be joint tort feasors, and responsible jointly and severally for the resulting injury as all joint tort feasors are. It will not suffice, as a general proposition at least, that the separate wrongful acts or omissions of two persons, having no connection with each other, the motive of each being foreign to that of the other, have in their unintended coalescence and co-action produced an injury: joint and several liability cannot ordinarily be affirmed upon such a state of case. An exception to this general doctrine was virtually declared by the court of appeals of New York in the case of Colgrove v. The New York & New Haven R. R. Co. and The New York & Harlem R. R. Co., 20 N. Y. 492, where it was held, Denio, J. dissenting, that a passenger injured by a collision resulting from the separate but concurrent negligence of two railroad companies, may maintain a joint action against both. This case has been followed several times in New York and by one or two cases in other States. See note to Colgrove’s Case, 75 Am. Dec. 419. And its doctrine in a modified form is embodied in the text of the Am. & Eng. Encyc. of Law, in this language : “Tort feasors cannot be sued jointly unless the tort has been committed by their joint act, or they are jointly guilty of the negligence or breach of duty causing- the injury.” Vol. 17, p. 602. The soundness of this exception to the general rule, for such it must be regarded, has been directly questioned, and is open to doubt.—Lull v. F. & W. Imp. Co., 19 Wis. 100; Trowbridge v. Forepaugh, 14 Minn. 183; Larkins & Moore v. Eckwurzel, 42 Ala. 322; Powell v. Thompson, 80 Ala. 51. Whether sound or not, however, we need not decide im this case. ■ The complaint here alleges a joint and several liabilty of these defendants for the result of their separate and distinct but concurring and co-acting negligence. Its sufficiency was not tested by demurrer ; but both defendants pleaded the general issue, thereby admitting its adequacy as a charge of joint tort against them, confessing, in other words, that if the separate negligence and the injury charged were proved they were jointly answerable in damages ; and if jointly liable upon proof against each, it follows there was also a several liability resting on that one, if only one,, against which the charge was established. The court therefore properly, on this state of the pleadings, allowed the jury to acquit one defendant and bring in a verdict against the other ; and hence, of course, there was no error in overruling the motion of the Bichmond & Danville Company for judgment in its favor non obstante veridicto.

We shall not disturb the trial court’s action on the motion to require the plaintiff to submit to a physical examination of his person. Under the circumstances the motion was not seasonably made ; and to have granted it would probably have been to have postponed the trial when it might as well have been brought forward sufficiently early for this result to have been avoided. Moreover, it should not have been granted at all, if it would have necessitated the plaintiff’s presence in Alabama and it appeared that he was not reasonably equal to the journey from his home in Texas.

There was no error in the refusal of the court to allow separate panels from which to make up the struck jury demanded.—Montgomery & Eufaula R.R. Co. v. Thompson, 77 Ala. 448.

In support of the trial court’s action in overruling defendant’s motion to exclude certain answers of plaintiff’s witnesses to interrogatories propounded to them by the plaintiff, it will suffice to say that the answers were responsive to the interrogatories, and no objections to the' latter were ever interposed by the defendants.—Louisville & Nashville R. R. Co. v. Hall, 91 Ala. 112, 119.

Moreover, none of the assignments of error addressed to the rulings below on theu admission of testimony are insisted on in argument; and we will not further discuss those rulings.

There was evidence which afforded ground for an inference of wantonness, or reckless indifference to consequences, in the conduct of the engineer in charge of the Richmond & Dan-ville train. Without stating the testimony in full on this point, it will be sufficient to recall that of passengers on that train to the effect, or tending to show, that it’s speed when approaching the crossing was from thirty to forty miles per hour, that it was not only not brought to a full stop near the crossing, as required by the statute, but that to the contrary, its speed was not at all slackened in its approach thereto ; and of the engineer and fireman on the Savannah & Western train, that the engines were in plain view of each other, when that of the latter train was about to go on the crossing, and that of the Richmond & Danville was one hundred and fifty feét away. If this testimony was true, and its truth was a question for the jury, the inference is- readily, if not obviously, deducible- that the Richmond & Danville engineer took the desperate chance either of passing the crossing-before the immediately approaching engine on the other road reached it, or, if that engine was already there, the equally desperate chance of its being backed off before his engine reached the crossing. In either event, assuming the Richmond & Danville engineer to have been a sane man, the conclusion that he must have then had in his mind the probable consequences of his wrongful omission to make any effort to stop or to slacken the speed of his train is certain and inevitable. If the jury reached this conclusion, as upon the evidence it was open to 'them to do, the case involved every element of that wantonness, willfulness or reckless indifference to probable results necessary to the imposition of punitive damages. The court’s charge ex mero moiu on this part of the case, and its refusal to give charges 1 and 3 requested by the Richmond, and Danville Company, were free from error.

On the other hand, there was evidence going to show that the engineer did not hioio the Savannah & Western train was upon or approaching the crossing and had not actual knowledge of the impending peril of a collision in time to avert it by a resort to all possible preventive effort. And the question raised by the trial court’s refusal to give charges 8 and 9 requested for the Richmond & Danville Company is whether, if this evidence be true, its engineer could be guilty of wantonness, or the like. It was settled

in Lee’s Case and again in Webb’s Case that the knowledge of danger upon which, in connection with the absence of subsequent diligence to avoid its consequences, a charge of wantonness might be sustained, need not be that which is presently acquired through the physical senses; the party charged need not on the particular occasion see or hear, or through other sense become advised of the actual presence of every element necessary to constitute the danger that really exists. If, as was in affect declared in those cases, he knows of a crossing where people are wont to be in such numbers and with such frequency, a fact also known to him, as that to run a train along there with such great speed as not to be readily controlled and which might not admit of the escape of persons crossing the track, his conduct, he having in mind that he was approaching such a place, would authorize the imputation of wantonness, willfulness or reckless indifference to consequences, though in point of actual fact he did not, in the particular 'instance know of the presence of persons in exposed positions:—Ga. Pac. Rwy. Co. v. Lee, 92 Ala. 262; L. & N. R. R. Co. v. Webb, 97 Ala. 308.

Tendencies of the evidence in the case at bar bring it, in our opinion, within the doctrine just stated. The engineer knew the location of the crossing; he knew that he was approaching it, for, according to all the evidence, he sounded the whistle of the locomotive with reference to it; he knew that trains on the other road were liable at any time to be on the crossing and unable to pass clear of it after the two trains were in view of each other, or might at any time be approaching the crossing without the ability to stop short of it after seeing a train rapidly approaching it on his road, and that such other trains had the same right as his to approach and be on the crossing. He was advised by the statutory rule, of which he was presently aware, of the exceeding great danger of rushing headlong onto the crossing in violation of it, and a visible sign was there to admonish him of the point beyond which in every instance it was unsafe for him to go without stopping and ascertaining the way to be clear; and he knew also of that physical conformation of the locality which obscured one road from the other and trains on them from each other, until they were so near together in approaching the crossing as that, unless the statute had been complied with, trains going even at an ordinary rate of speed would inevitably collide. The jury finding the truth of these tendencies of the evidence, and further finding, as it was open to them to do, that this engineer, with all of this in his mind, hurled his train at a great speed upon the crossing, not even slackening its pace of thirty or forty miles an hour, were authorized to conclude that he had that consciousness of the perilous character of the situation and of his own conduct with reference thereto, which is an essential element of wantonness and the like, though they might also have believed that he had no actual knowledge of the approach of the Savannah & Western train. Charges 8 and 9 where therefore misleading, and well refused.

The plaintiff being a passenger on the colliding train of the Richmond & Danville Conlpany, its employes, and among the rest the engineer, owed him the duty of exercising the highest degree of care, diligence and skill, in conservation of his safety, and the company was responsible in damages to him for the slightest negligence on the part of its servants resulting in injury to him.—M. & E. Rwy. Co. v. Mallette, 92 Ala. 209; A. G. S. R. R. Co. v. Hill, 93 Ala. 514. Care and diligence such as a reasonable and ordinarily prudent person would exercise is in legal contemplation reasonable and ordinary care and diligence: it is not that highest, that utmost degree of care and diligence and skill which the law exacts of the carriers of passengers. Nor is conduct actuated by good faith and an honest purpose to avoid injury to passengers the equivalent of the highest care, or even necessarily of ordinary care. It is not what a man sincerely intends doing and does with sincere purpose to a given end that determines whether in doing it he has exercised the care demanded by the situation, but the inquiry is to be resolved upon a further consideration of his acts themselves. A negligent act is none the less negligently performed because of the good faith which characterizes it. It may be that trainmen on stopping for a crossing are not required to know with absolute certainty in any ca-se that the way is clear before proceeding; but, at least when the lives of passengers are at stake, they must actually make every effort, that the highest degree of care, skill and diligence requires, to be sure that the way is clear and will remain so sufficiently long for the safe passage of a bisecting road. That they may have done all they thought necessary for assurance will not suffice: they must have done all that the dictates of the utmost care would have suggested to be done. Charges 5 and 6 requested for the Richmond & Danville Company are faulty when brought to the touch of these considerations. They were, moreover, especially misleading in view of a tendency of the evidence to show that a train at the “stop-post” of the Savannah & Western road could not he seen by the engineer from his position at the “stop-post” of the Richmond & Danville road. There was no error committed in refusing them.

That trainmen of one road who, have complied with the statute on approaching a crossing, have a right to assume that trainmen on the other road will also comply with it, in the absence of any indication that they can not or will not, has been expressly decided by this court in a recent case. The general charge of the court on this subject is'not open to the objection presented by the exception thereto, that it ignores a duty which might have arisen upon circumstances transpiring after the train has started after complying with the statute. That matter is accommodated in the further declaration, not included in the language marked by the exception, brít a part of the charge on the same point, and to be considered along with every other part, to the effect, by necessary implication, that the first train has not the right to proceed over the crossing if the circumstances indicate that the other train will not stop.—Birmingham Mineral R. R. Co. v. Jacobs, 92 Ala. 187.

Charge No. 11 given at the request of the Savannah & Western Company assumes that the Richmond & Danville Company was guilty of negligence, and submits to the jury the inquiry only as to whether its negligence was the proximate cause of the injury. The question of negligence vel non on the part of the Richmond & Danville Company was severely litigated before the jury on parol testimony. It was solely the jury’s province to determine that question. The charge under consideration was invasive of the jury’s exclusive prerogative to find either that that company was or was not guilty of the negligence charged. The giving of it was erroneous.—Cary v. State, 76 Ala. 78; Sandlin v. Anderson, Green & Co., 76 Ala. 403; Joyner v. State, 78 Ala. 448; Carter v. Chambers, 79 Ala. 223; Jones v. Field, 83 Ala. 445.

The judgment of the City Court is reversed, and the cause will be remanded.