Kansas City, Memphis & Birmingham Railroad v. Lackey , 114 Ala. 152 ( 1896 )

McCLELLAN, J. —

The complaint contained six counts. A demurrer, assigning several grounds, was interposed to the complaint as a whole. Some of the counts are obviously good : indeed it is not insisted by appellant that any of them are bad except the fifth. On this State of case the demurrer was properly overruled even though the fifth count was bad.— Weems v. Weems, 69 Ala. 104.

The 4th, 5th and 6th pleas were interposed to the whole complaint. They attempted to set up contributory negligence on the part of the plaintiff, or on the part of the engineer in charge of the locomotive on which plaintiff was at the time he sustained the injuries complained of, assuming that plaintiff was responsible therefor. Whatever else may be said of these pleas, it is certain that they do not answer the count which avers that the “injuries were caused by the reckless, wanton and intentional misconduct” of defendant’s servants, &c.; and this consideration alone will suffice to justify the trial court’s action in sustaining a demurrer to these pleas.

Moreover, the gist of each of these pleas is that the plaintiff, or a person for whose acts he is assumed to have been responsible, caused the engine to be run towards the crossing of another railroad without knowing that the crossing was clear, or knowing that it was not clear. Granting this to be true, oh the case fully developed by the testimony it appears without conflict or adverse inference that the injury did not result from the fact thus alleged. This was the situation : Phillips was the engineer and plaintiff was fireman on an engine of the Alabama Great Southern Railroad, and in these capacities came on their engine just before the collision occurred to within sixty or seventy feet of the point where the track of another railroad company crossed that of the Alabama Great Southern Co., and there stopped. At this time defendant’s train was standing on the other track a short distance from the crossing, while the cars composing it were being inspected for the purpose of being transferred to the Alabama Great Southern Co. Phillips, with his engine and crew, was there to receive these cars. To effect the transfer it was necessary for defendant’s train to pass over and beyond the crossing. After the inspection had been completed defendant’s train did pass over the crossing and.after this the Alabama Great Southern engine went onto the crossing, but before clearing it the defendant’s train backed suddenly and without signals against it, causing the injuries complained of. Phillips and plaintiff had no reason to apprehend that the other train would be backed onto the crossing; there was no occasion that it should be to effect the transfer which was the sole object in crossing the track of the Alabama Great Southern road. Now it may be that when Phillips’ engine was started or moved forward toward the crossing the rear part of defendant’s train was still upon it, so that the crossing at that time was not clear or free from obstruction ; but, if so, it was rapidly passing and had entirely passed, leaving the crossing clear, before Phillips’ engine reached it. For Phillips to move his engine forward in anticipation of defendant’s train, at the time in motion over the crossing, getting past the crossing and leaving it unobstructed by the time his engine reached it, he knowing that it was the purpose of defendant’s servants to go on to a point beyond the crossing and there stop, might possibly be regarded in some aspect negligence on his part, inasmuch as defendant’s train might have been stopped by some unforeseen accident before it cleared the crossing. But, conceding such conduct on the part of Phillips to have been negligent abstractly speaking, nothing is clearer than that such negligence was not the proximate cause of the disaster. Defendant’s train was not stopped on the crossing, there was no reason that it should be, and no intention on the part of defendant’s servants to stop it there. The crossing was clear and unobstructed when Phillips’ engine reached it, and but for a wholly fortuitous and unlooked for circumstance would have remained so while he was passing over it, and for all time so far as that train of defendant was concerned. This circumstance was that the engineer on defendant’s train, after he had fully cleared the crossing, apprehending a collision with a train on another track which he was about to cross or run upon, and the approach of which was unknown to plaintiff and Phillips when the latter moved his engine onto the crossing, suddenly reversed his engine, gave it steam and backed his train onto the crossing where Phillips and plaintiff were at the time passing on his engine. It is manifest on .these facts that the cause of the collision lay not in the fact that Phillips moved his engine forward toward the crossing before defendant’s train had entirely passed over it, but altogether in the wholly independent, disconnected and unanticipated fact that defendant’s train was thus again thrown back on the crossing, a fact which was contrary to custom, and to the intention of defendant’s servants in crossing over, and not only unnecessary to the accomplishment of the purpose for which it had passed the crossing, but subversive of' that purpose ; and one which neither Phillips nor the plaintiff was under any duty to anticipate. On this uncontroverted state of case, it requires no argument to demonstrate that the injury did not result from any obstruction that may have been on the crossing when plaintiff’s engine was moved forward, that defendant could take nothing by its pleas setting up such obstruction and Phillips’ and plaintiff’s knowledge and negligence in respect of it, and that the trial court’s action in sustaining the demurrer to pleas 4, 6 and 6 worked no possible injury to the defendant.

It is equally clear, and for the same reasons, that the charges given at the request of the plaintiff could not have prejudiced the defendant, since they are to this effect only, that the negligence of Phillips does not bar plaintiff’s recovery. Now, whether plaintiff would have been chargeable with Phillips’ negligence, had it proximately'contributed to the injury, is a question we need not and do not decide in this case ; but his recovery is not precluded by the only negligence of Phillips which there is any tendency of testimony to prove is clear, for that such negligence did not proximately contribute to the damnifying result.

Similarly charges 6, 8, 9, 10 and 11 refused to the defendant relate to the supposed negligence of Phillips or the plaintiff in respect of moving their engine toward or upon the crossing. If there was such negligence, the remoteness of its casual connection with the injury rendered it an irrelevant and immaterial matter in the case ; and the court committed no error in refusing these requests for instructions.

It may be that defendant’s engineer was justified, by the apprehension of collision in front, in backing his engine off the track of the Georgia Pacific road; but there was abundant evidence to afford an interference on the part of the jury that he might have escaped the danger in front, and at the same time have avoided a collision in the rear, by the exercise of due care and prudence in the manner of backing his train. The evidence showed that there was room on defendant’s track between the Alabama Great Southern and the Georgia Pacific tracks to amply accommodate this train, safely clearing said tracks at either end. Conceding, therefore, the right of defendant’s engineer to reverse his engine and back his train when he saw the Georgia Pacific train approaching, so as to recede from its track, it by no means follows that defendant was entitled to a verdict, as it sought tp have the jury instructed'by charges 2 and 7; and the court properly refused those instructions.

Charge 3 refused to the defendant was in the nature of an argument, to the effect that inasmuch as the evidence tends to show that some freight trains are equipped with air brakes and some are not, that trains equipped with air brakes can be stopped in much less time and space than others, and that defendant’s engineer did not know whether the Georgia Pacific train was so equipped or not, therefore he had a right to presume that said train was not so equipped, and that, acting upon that presumption he was not negligent in reversing his engine in order to escape a collision of which there was danger if that train had hand brakes only, though as matter of fact it was equipped with air brakes so that no danger of a collision really existed. All this was apt argument to the jury, but it was for counsel and not the court to lay it before them.

The instruction, moreover, tended to mislead the jury from a consideration of the evidence tending to show that although the defendant’s engineer had a right to back his train, he was careless and negligent in the manner of exercising this right, and to the conclusion that defendant was entitled to a verdict if its engineer had a right to assume that the Georgia Pacific train would collide with his unless he backed off its track, without reference to the inquiry whether he should have placed his train safely between the Alabama Great Southern and the Georgia Pacific tracks. The charge was properly refused.

There being evidence of negligence on the part of defendant’s servants having an immediate causal connection with the injury, and the defense of contributory negligence not being made good, the court very properly refused the affirmative charges asked by the defendant on the whole complaint and separately on the 1st, 3d, 4th, 5th and 6th counts thereof.

The witness, Phillips, was shown to be familiar with the scene of the collision and the length &c., of the track between the Alabama Great Southern road and the Georgia Pacific road, and he is shown also to have known the number of cars in the length of defendant’s train which collided with his engine. It was competent for him to testify that there was room on that interyening track for defendant’s train to stand, clearing the other tracks front and rear.

We do not think the question to witness Adams, to which objection was made, called for irrelevant and incompetent testimony in view of defendant’s efforts to prove that the Alabama Great Southern engine should have “come in on the cut-off.” Certainly defendant was not prejudiced by the answer finally made.

We do not feel authorized to disturb the verdict on the supposed ground that it is excessive. — A. G. S. R. R. Co. v. Bailey, 112 Ala. 167.

Affirmed.