Alabama Great Southern Railroad v. Hall , 105 Ala. 599 ( 1894 )

COLEMAN, J.

The meritorious questions in this cause grew out of the first count of the complaint, and the pleas thereto, and a replication to the pleas of contributory negligence. The plaintiff’s intestate was employed as a brakemau by the defendant corporation. The count charges that while plaintiff’s intestate “was engaged in the service of the defendant as brakeman,” the train was derailed by reason of the negligence of the engineer, in running the train at “a dangerous and reckless rate of speed,” and which caused the death of plaintiff’s intestate. Only simple negligence is charged in this count. To show contributory negligence, the defendant set out in its plea a rule of the company which provided that brakeman “must not leave their brakes, while the train is in motion, nor take any other position on the train, than that assigned them by the conductor.” The plea averred knowledge of the rule on the part of the deceased, and stated that deceased voluntarily, without an order of the conductor, and in disobedience of the rule, left his place while the train .'was in motion, and was on the engine, at the time he was killed, and thereby proximately contributed to liis own death. To this plea the plaintiff replied that the engineer was guilty of “gross, wanton and reckless negligence in running the engine at too great a rate of speed.”

If by the replication it was intended to aver no other than simple negligence, as charged in the complaint, the replication did not answer the plea. On the other hand, if the replication averred wanton or willful wrong, the replication was a departure from the original cause of action, and upon objection should have been rejected.—L. & N. R. R. Co. v. Markee, 103 Ala. 160. Issue was joined upon the replication and the issue thus made was submitted to the jury.

The evidence showed without conflict that the facts stated in.the 4th plea, setting up contributory negligence, were true, and the court as matter of law instructed tho jury that plaintiff’s intestate was guilty of contributory negligence. It is manifest, therefore, that the court corn strued that the replication averred wanton negligence, as distinguished from simple negligence charged in the complaint. There was evidence before the jury tending to show that the train was being run at a speed of forty miles an hour, and the witness Mothershed, who seems to be an expert, testified that forty miles an hour was a dangerous rate of speed for a freight train, but he testified that freight trains were often run at such speed without accident. Is there anything in this testimony, from which a jury would be authorized to infer that the defendant was guilty of wanton negligence, the equivalent of a willful wrong, in running an engine at the rate of forty miles an hour? Before one can be held guilty of “willful” or ‘ ‘wanton and reckless negligence,” the facts must show, either that the party knew his conduct would inflict injury, or the facts must show, that on account of the attending circumstances, which were known to him, or a knowledge of which he was chargeable with, the inevitable or probable consequences of his conduct would be the infliction of injury, and with reckless indifference to the consequences, committed the act, or omitted to perform his duty.—Ga. Pacific Railway Co. v. Lee, 92 Ala. 262 ; L. & N. R. R. Co. v. Webb, 97 Ala. 308. There was no evidence which authorized the submission of the question of “wanton and reckless negligence” to to the jury.

The court did not err in receiving non-expert testimony as to the rate of the speed of the engine. The judgment or conclusion of the witnesses as to its speed, in one sense, was an opinion. They were eye witnesses to the speed of the train. 'Its speed was an issue before the jury. How better could the fact be gotten before the jury, than by the judgment of those who saw it? On account of the necessity of the character of the evidence, courts permit ordinary witnesses to testify as to speed. The want of experience would go to the weight to be given to the evidence, but not to it admissibility. Kansas City M. & B. R. R. Co. v. Crocker, 95 Ala. 412; Evansville v. Crist, 116 Ind. 446, 9 Amer. St. Rep. 865; Lawson on Opinion & Expert Evidence, pp. 460-465.

We are of opinion that the court erred in allowing non-expert testimony to be introduced to show that the rate of speed was dangerous. These non-expert witnesses were no more competent to draw such a conclusion than the jurors. They should not have been permitted to substitute their conclusions for those the jury ought to draw. The testimony of the witness Mothershed was properly received, it having been shown that he was an expert.

In the case of Mary Lee C. & R. Co. v. Chambliss, 97 Ala. 171, the general rule was recognized, that an' employé, who voluntarily undertakes to perform a duty not within the scope of his employment, assumes the risk of such undertaking. That the plaintiff's intestate voluntarily left his place as brakeman and undertook to perform the duties of a fireman, as a favor to the regularly employed fireman, without orders or instructions from the conductor, or any person having authority over him, and while thus engaged as a fireman was killed, we think clearly established. The complaint also declares, that the deceased at the time of the injury was engaged in his duties as brakeman, while the uncontroverted proof shows, that at the time of the injury, the deceased was performing the duties of a fireman. The variance in this respect was fatal to a recovery upon the complaint as framed.—Collier v. Coggins, 103 Ala. 281; McDaniel v. Highland, Ave. & Belt R. R. Co., 90 Ala. 64; Warden v. L. & N. R. R. Co., 94 Ala. 277.

In the oral charge given, the court did not observe the principles declared in the more recent decisions, as to what constitutes “simple negligence,” and “wanton and reckless regligence or willful injury.” In the case of K. C., M & B. R. R. Co. v. Crocker, 95 Ala. 412, supra, the .court undertook to define'the word “reckless” and drew the distinction between negligence charged to have been “reckless” and a “willful or wanton injury;” and in the case of Stringer v. Ala. Mineral R. R. Co., 99 Ala. 397, it was said that “the words ‘gross’ ‘reckless’ when applied to negligence per se, have no legal significance, which imports other than simple negligence, or a want of due care.”—16 Amer. & Eng. Encyc. of Law. pp. 426, 427.

Where the proof shows, as it does in this case, that deceased left a wife and minor children, who will be entitled to rhe benefit of any sum that may be recovered, whether or no the deceased spent upon his family all his wages, the measure of damages is declared in the following cases : L. & N. R. R. Co. v. Trammell, 93 Ala. 350; McAdory v. L. & N. R. R. Co., 94 Ala. 272; Bromley v. B. M. R. R. Co., 95 Ala. 397; Markee Case, 103 Ala. 160, supra. If the evidence shows that his entire income was consumed upon himself and family, the amount expended upon himself should be deducted. The plaintiff is required to furnish the data to enable a jury to ascertain with reasonable accuracy the amount he is entitled to recover.

Reversed and remanded.