Louisville & Nashville Railroad v. Davis , 99 Ala. 593 ( 1892 )

HABALSON, J.

The facts of this cause are substantially the same as they were on the former appeal, and they are set out in the report of the case in 91 Ala. 487.

The opinion of the court in that appeal is decisive of many of the questions raised in this one, and relieves us from, further discussion of them.

The question propounded by plaintiff to the witness, Mothershed, on the rebutting examination, was not improper. He was shown to be an experienced railroad man, and was competent to give his opinion touching the matter about which the enquiry was made. Besides, the defend ant had just propounded the same question, in-substance, to four of its witnesses, who, in answer thereto, had.given their opinions of McNutt as a brakeman, and we ought not to deny that privilege to the plaintiff, where the witness is shown to be of the class, competent to give an opinion.

Charges asked by defendant and refused, numbered 1, 2, 3, 4, 8, 9, 11, 11, 18, 28, are. of a class, predicated more or less upon the annuity tables in evidence, and upon' considerations growing out of them. The plaintiff is shown, to have been 18 years old, at the time of the. injury to him, and that his expectancy of life, according to these tables, was 13 years. This was important and competent evidence, entering into the calculation of his damages, but it was not all. The evidence, in addition, tended to show, that, at that time, he was earning $1.50 per day; what was his disability since,1 to labor and earn a livelihood; his almost helpless condition and the pain and physical suffering he endures. All these facts together, without the exclusion of any, furnished the proper data for a calculation of damage by the jury. The verdict they rendered shows they did make some sort of a calculation, and the presumption is they were competent to make it. When a jury is duly organized to try a cause, it is not proper to give a charge, asked by either party, predicated upon their ignorance or incapacity to make a calculation or render a verdict.

These charges, were, each, subject to the infirmity, either of selecting, or of giving undue prominence to parts of the evidence, and ignoring other parts, as predicates for instructions, or of being argumentative, confusing or misleading, and were properly refused.

Those numbered 5, 6, 7, 10, 12, 23 and 38 were each properly refused. The witness Langford testifies, -that the- engineer made a drop switch, and that there is no difference between a drop and a running switch, and Crawford testified, in substance, to about -the.same thing. O’Connor states, that it is a running switch when made up; and a drop switch when made down grade. . .

The witness Warner, an employe of the defendant company, testified that the way in which this car was put in on the repair track was a running switch, that.it is a running switch when up, and a drop switch when down grade, the engine being in front in both instances. The evidence of these witnesses, therefore, tends to show, when taken in connection with all the evidence, that the car doing the damage, was run upon the repair track by means of a running switch. It was improper, then, to charge the jury, that a running switch was not made. The conflicts on the question, if important, were for the jury to settle. But, what difference does it make whether the car was put in on the repair track in the one or the other method, if the one employed was so carelessly performed, as to do the mischief that followed? The question is not the kind of a switch by which the car was put upon the track, but the carelessness with which it was done. And it is a poor excuse to give for the injuries done to the plaintiff, to say, that the like method of switching cars was being employed on other well regulated railroads. The rules of this company, as was shown, forbade the use of running switches, and. if the employes of the defendant violated that rule, as the jury, under the evidence, might have concluded, and the injury to plaintiff was the result, the company can not be heard to plead that other well regulated roads were in the habit of doing as it had done.

There was no error in the refusal to give charges Nos. 17, 19, 20, 21, 22, 32, 33, 34. They ignore the rule of the company against running switches, and the evidence as to the speed with which the car was run upon the repair track, and assume as a matter of law, that making such switch was not negligence, in any aspect of the evidence, and this, when to make such a switch was against the rules of the company, and when one aspect of the evidence tended to show, that the car was run in at the rate of 8 or 10 miles an hour, which we held on the former appeal to be negligence.

Charges 24, 25 and 26 each amounted to the general charge, and neither, under the evidence, was proper to have been given; and the same is true of Nos. 35, 36 and 37.

N,os. 13 and 27 suggest no reason why plaintiff should not be allowed compensation for loss of time while confined to his bed after the injury; and if their purpose was to raise the question of his minority at the time, and that he could not, on that account, recover compensation for loss of time while confined, they are misleading, in that the principle of law intended to be invoked was not made known to the court by the charges.

The 29th, 30th and 31st, each, proceed on the assumption, that if McNutt was not guilty of negligence, no recovery could be had by the plaintiff. They ignore the rule of the company against running switches, and the speed of the car, and assume as.a matter of law, that making such a switch was not negligence in any aspect of the evidence; and 80 and 31 are further faulty in assuming that the brake was out of order.

The ones numbered 17, 32, 38 and 34 are each bad, in that they ignore material facts in the evidence, which, if found to be true, ought to be considered in connection with those hypothesized.

The oath of the jury is “a true verdict render according to the evidence.” The burden the law casts on a plaintiff in a civil action to entitle him to a verdict, is to make out his case to the reasonable satisfaction of the jury, by a preponderance of the evidence. Charges 15 and 16 exacted too high a degree of proof, and were erroneous.—Rowe v. Baber, 93 Ala. 422; Thompson v. L. & N. R. R. Co., 91 Ala. 496; Wollner v. Lehman, Durr & Co., 85 Ala. 275; L. & N. R. R. Co. v. Jones, 83 Ala. 377.

We find no error in the record, and the judgment of the Circuit Court is affirmed.