Louisville & Nashville Railroad v. Morgan , 114 Ala. 449 ( 1896 )

McCLELLAN, J. —

The complaint contains several counts each claiming damages from the defendant railroad company for negligence of its servants whereby plaintiff’s intestate, a brakeman in defendant’s service, was killed. There were demurrers to the complaint assigning several grounds, which were overruled by the court. Of this ruling, only this is said in appellant’s brief: “The demurrers to the complaint, on pages 7 and 8 of abstract, set forth succinctly the grounds upon which they were urged; and the correctness of the ruling of the court thereon is, therefore, submitted without further argument.” This reference to the ruling on demurrer is not a discussion of it by counsel, and presents no obstacle to the application of the rule that “errors assigned in civil cases which counsel do not consider of sufficient importance to receive consideration by them will be regarded by this court also as unimportant.”— Henry et al. v. Hall, 106 Ala. 537. We might, therefore, decline to review tire judgment of the lower court on the demurrer. But the first demurrer interposed confessedly went to the whole complaint, and no ground assigned is good against each of its counts. Indeed, but one of the assignments is well taken against any of the counts, and that is bad as applied to one of them. And the demurrer last filed, while it professes in its caption to go to the complaint “and each count thereof, separately and severally,” yetis really laid against the whole complaint in its specifications ; and is certainly bad as to some of the counts, if indeed any of them are open to any of the objections taken by it.

The third count avers the negligence of the engineer in leaving his engine to the management of a fireman, and that said fireman negligently ran the engine against a car on which intestate was, &c., knocking him off, &c., and killing him. With this averment as to the engineer in the case, we are unable to see that the court erred in allowing plaintiff to prove by the witness Blackburn where the engineer was at the. time the engine was propelled against the car on which intestate was, as that he was at a point distant one hundred and fifty feet or more from the depot, the location of the depot in respect of the engine being shown. Moreover, the whereabouts of the engineer was a material fact under those counts which aver that the fireman was in charge and control of the engine at the time of the casualty.

Defendant asked the witness Hughes on cross-examination, the following questions : “He was there in charge, wasn't he, of the train all the time? Wasn’t he the one giving directions?” The abstract does not advise or aid us in determining who was referred to in these inquiries ; the identity of “he” is left to conjecture. If the same uncertainty obtained in the lower court, it affords a sufficient justification for its refusal to allow the questions to be answered. As it is presented here we cannot intelligently revise the ruling below. If, as counsel assume, these questions had reference to the intestate, they called for immaterial testimony. Conceding him to have been in charge of the train and giving directions as to the switching operactions being carried on, there is no pretense that any signal or direction he gave was negligent or contributed proximately to his death. The gist of the action is not that the fireman moved his engine, but that he carelessly and negligently moved it; and the intestate’s proper signal for him to move it affords no excuse for him or defense to the company for the improper manner in which he obeyed the signal.

Rule 203, put in evidence by plaintiff, has reference not only to regular engineers but to firemen temporarily in charge and control of engines; they, for the time, are "enginemen” within the rule. The pertinency of the rule as thus construed is obvious. Rule 209 was pertinent as showing that the fireman on the occasion of intestate’s death was in charge and control of the engine by authority of the defendant.

What the intestate was expending on his young brother, distributee of his estate, was to be considered by the jury in determining the damages sustained by the next of kin by his untimely death. — L. & N. R. R. Co. v. Trammell, 93 Ala. 350. And, obviously, the money he was saving and investing in land from month to month, and which presumably he would have continued to save, should be taken into account. Charges 1, 8, 11 and 12 asked by the defendant were, therefore, properly refused.

Charges 2 and 3 asked by defendant were bad for singling out the evidence of one witness, and instructing the jury (2) to find for defendant if they did not believe the evidence of the witness Hughes, and (3) to find for the defendant if they believed the evidence of the witness Thomas. Moreover, a verdict for defendant would not, as a matter of law, follow from either of the conclusions of fact thus hypothesized. Charge 10 is likewise faulty.

The facts admitted in evidence before the jury as to intestate’s age, habits, working and earning capacity and the disposition of his earnings, together with the jurors’ common knowledge as to his life expectancy afforded data for the admeasurement of damages, if the jury found that he came to his death by reason of actionable negligence on the part of the defendant; and charge 6, confining the recovery to nominal damages, was properly refused..

The charges which were to the effect or proceed on the idea that the intestate was guilty of proximate contributory negligence as matter of law were properly refused. At most the evidence on that subject tended to show such negligence, and the question was for the jury.

Affirmed.