Alabama Great Southern Railroad v. Dobbs , 101 Ala. 219 ( 1893 )

HARALSON, J.

The bill of exceptions sent up as a return to the certiorari awarded by this court must be regarded as the true and correct record, since there is a difference between it and the transcript of the cause as originally filed. — Pearce v. Clements, 73 Ala. 256.

We settled the principle in the beginning, and have not departed from it since, that "when a document is sought to be made a part of a bill of exceptions by reference, and not by copy, it must be so described by its date, amount, parties, or other identifying features, that the transcribing officer can, unaided by memory, readily and with certainty determine, from the description itself, what document or paper is referred to, without room for mistake.” — Looney v. Bush, Minor, 413; Parsons v. Woodward, 73 Ala. 348. In this bill of exceptions, we find two blanks left by the judge signing it. The first occurs after the words, "The defendant then offered the admis-, sions of what the witness, Hickman, and others would swear, if present,” where these words appear in parenthesis : £ ‘ (These admissions are with the file of papers in the circuit clerk’s office, and the clerk will set them out.)” The showing as to the witness, Hickman, alone, appears in the record, and we are to presume the showing as to other absent witnesses, if any, was not made, or, if made, not allowed. The clerk, in filling this blank under the direction of the judge, copied what purports to be a showing for a continuance of the cause, on account of the absence of the witness, Hickman, which showing contains the title of the cause, followed by a statement of the reasons why the witness was not present, and of what he would prove, if present. It does not appear there was any other witness in the cause by the name of Hickman, and nothing appearing to the contrary, the presumption is, there was but one of that name. The name of the witness is given, what he will swear' is written out, the judge certifies that it was offered in evidence, that it is with the file of papers, and directs the clerk to set it out in the bill. Its identification seems to be so complete, as to leave no room for the clerk to mistake it for any other paper. He could, unaided by memory, determine, readily, what document was referred to by the judge, and he very properly inserted it as a part of the bill.

The second blank is at the point where the judge refers to the written charges of the plaintiff and the defendant in these words : "The court gave the following written charges to the jury, at the request of the plaintiff. To the giving of each of said charges, the defendant then and there made a separate objection to the giving of each of said charges, and the clerk will set out each of said charges.” And, "The defendant requested the court to give the following written instructions to the jury. The court refused to give each of said instructions, and the defendant then and there made a separate exception to the refusal of the court to give each of said charges. The clerk will here set out said charges.’ ’ The certiorari awarded in the cause by this court, on a suggestion .of an incomplete record, required the clerk to certify a full and complete copy of the bill of exceptions as signed, and copies of the charges asked in the cause, separately from the bill of exceptions, with the endorsements thereon. He certifies he has done so, and that the words, “Given, Jno. B. Tally, J.” and the words, “Refused, Jno. B. Tally, J.” were in the handwriting of Judge Tally, and are the only charges in that court in this cause. Section 2756 oí the Code makes it the duty of the presiding judge, to write “given” or “refused,” as the case may be, on the charges moved for in the trial of a cause, and sign his name thereto, which thereby become a part of the record. When the judge instructed the clerk to insert in the bill charges which the statute makes a part of the record, there could have been no more uncertainty as to what was meant, than if reference had been made to any other part of the record in a case, if it had been offered in evidence, and the court had ordered it inserted. There were no other charges than the ones set out in the bill of exceptions, in the original and amended transcript, and there was no opportunity for mistake. There was no error in the clerk inserting them in the bill. — Mobile Savings Bank v. Fry, 69 Ala. 348; Mobile & Birmingham R. R. Co. v. Ladd, 92 Ala. 288, 9 So. Rep. 169.

The evidence is without contradiction, that the child that was killed Avas about eighteen months old; that it had Avandered unattended out of its father’s yard, and had gone doAvn the railroad track, which was about 50 feet from the dAvelling, and tAventy-five feet from the yard fence, some hundred and fifty yards, and had clambered up on the track, just as the train was approaching ; that its father, the plaintiff, had arrived at the house from toAvn, about a half an hour before, and was at home Avhen the train passed his door; that he knerv the train Avas coming, as it was preparing to do so when he passed the depot, on his Avay home, and he kneAV the schedules of the trains on that road ; that on arrival at home, he saAV the child in the kitchen and jfiaying about the yard, a few minutes before the train came along; that the train passed and stopped, and he was soon informed his child had been injured, and he supposed it had pushed open the gate to the yard fence, and gone out. Here, then, was a very young child, living within fifty feet of a railroad, along which trains were in the habit, of passing several times a day, allowed to play by itself in the yard with the gate to the yard fence so insecure, as it could be opened by one of its age, with no one to attend or nurse it, and keep it from going where it pleased, and the father in the house, with knowledge of the schedules of the trains that passed his door daily, and that this train would pass along very soon. It is the assertion of a plain and obviously just principle to say, if parents permit a child of tender years to run at large without a protector in exposed and dangerous places, where it is liable to be damaged, they fail, in a legal sense, in the performance of their duties, and are guilty of such negligence as will preclude them from a recovery of damages for any injury resulting therefrom, which is not recklessly, wantonly or intentionally inflicted. — Beach on Con. Neg., § 142. Parents living in such close proximity to a railroad as this plaintiff did are under legal obligations to exercise care to protect their children from almost hourly peril, by having them attended or kept within secure enclosures. The evidence makes a plain case of contributory negligence on the part of the plaintiff for the injury sustained, such as disentitles him to compensation by the defendant corporation, unless it is overcome by more than simple negligence on the part of the defendant. Was the company guilty of such negligence?

The evidence of the witnesses for the defense tends to show, that the train was supplied with a sufficient force, and with the necessary and proper appliances for moving and controlling it; that a careful lookout for obstacles on the track ahead was observed by the engineer ; that as soon as the child came into view, it was discovered, and all preventive appliances were at once put into operation to save it, but without avail; that it was not discovered in time to prevent the accident, and there is nothing tending remotely to show, so far as their evidence discloses, that the engineer and the force under him were unwilling or indifferent to do what they could to avoid the deplorable accident, after they discovered the-exposure of the child. On the other hand, there is evidence introduced by plaintiff, competent for the jury to consider as tending to show, that he and his crew did not do all that might and ought to have been done to prevent the accident, after the peril of the child had been discovered — Williams v. S. & N. Ala. R. R. Co., 91 Ala. 635, 9 So. Rep. 77; Frazer v. S. & N. Ala. R. R. Co., 81 Ala. 186, 1 So. Rep. 85; Ga. Pa. R. Co. v. Lee, 92 Ala. 262, 9 So. Rep. 230.

The witness, Nichols, who testified he had been an engineer on a railroad for twenty years, swore that he had examined the ground at the place of the accident, and knew the road, and, presuming the engine to be in good condition, with all the modern appliances in general use, and known to skillful engineers, — and such the evidence tends to show was the condition of this engine,— this train, by the use of such appliances, could have been-stopped inside of one hundred and fifty yards. The engineer of the train testified, that the engine was about one hundred and fifty or one hundred and seventy-five yards from the child, when he first saw it, and that it was two hundred yards from the point where he first began to reverse his engine to the place where he stopped the train. The evidence of the witness, Nichols, leaves some ground of inference, on the part of the jury, which we are not permitted to withdraw from them, that the engineer failed to promptly use all available appliances to stop his train before reaching the child.

Pleas Nos. 2, 3 and 4, as amended, present, each, a complete defense. The demurrer to plea No. 2 was properly overruled. Pleas 3 and 4, as applied to the 7th count of the complaint, were no answers thereto, and the demurrers to them were properly sustained. Pleas 3 and 4, as applied to the 8th count, furnished answers thereto, and the demurrers to them should have been overruled. But this was error without injury, since the defendant had the benefit of the same facts under the general issue. — 2 Brick. Rig'., 352, § 348.

Charges given for the plaintiff, Nos. 1 and 2, are argumentative, and might have been refused on that account, but that they were given is not reversible error.— Bancroft v. Otis, 91 Ala. 279, 8 So. Rep. 286; Waxelbaum v. Bell, 91 Ala. 331, 8 So. Rep. 571. Charge No. 3 given for plaintiff' asserts a correct proposition. As there was some conflict in the evidence, charges Nos. -1 and 2, asked by defendant and refused, were properly refused. Charge No. 3 requested by defendant and refused, ignores the consideration of any willful, wanton or intentional negligence on the part of the defendant’s employés, and was properly refused. If the evidence for the defendant, as to the alleged negligence of the engineer, conductor and brakeman is to be believed, the jury might have found for the defendant. Charge 4 on this subject, requested by defendant and refused, was faulty, for the same reason we have stated No. 3 was properly refused.

Charges Nos. 5 and 6, requested by defendant, ignore the consideration by the jury of any gross or wanton negligence by defendant’s employés in charge of the train, and in making the slightest degree of negligence on the part of the plaintiff, the legal equivalent of that degree of negligence which contributed proximately to the injury.

We find no reversible error in the record, and the judgment of the circuit court must be affirmed.