Highland Avenue & Belt Railroad v. Swope , 115 Ala. 287 ( 1896 )

HEAD, J.

Action against appellant for personal injuries. The case was tried upon counts numbered, respectively, 1, 3, 5, 6, 7, 8, 9. 10 and 11. The court gave the general charge for defendant on counts 1, 3, 5 and 9. The first contains the essential introductoi’y facts which were adopted by the subsequent counts. It alleged, in substance, that defendant operated a railroad in Birmingham and vicinity, commonly called a “dummy line,” for the common carriage of passengers, running on Twenty-second and other streets. That street and First avenue — another street of the city — intersect and cross each other. At the time of the injury another company, the Birmingham Railway and Electric Co., by and with the permission, consent or license of the defendant, was operating and running cars within and outside the city for the carriage of passengers, on and over a railroad on said First avenue, passing the point of intersection of Twenty-second street. The tracks of the two roads cross each other at the crossing of the two streets. The plaintiff was a passenger on a car of said Electric Co. proceeding along First avenue, and at the point of crossing of the two roads, a train on defendant’s road “under the control or management of the person or persons in charge of said train, by and with the defendant’s consent, approached First avenue, coming across a bridge on Twenty-second street, and ran into and collided with the train on which plaintiff was riding, turning the latter train partly over and thrusting plaintiff against her seat or seat-handle, and throwing another person against plaintiff with great force, and throwing plaintiff out of the car to the ground, ’ ’ causing specified injuries to her person. The count avers that said injuries were the result of negligence of the person or persons in charge of defendant’s said train in the management or the running of the same.

The sixth count varies, somewhat; the introductory allegations of the preceding counts. It alleges that defenclant was the owner of the road running on Twenty-second street, and was incorporated and organized for the purpose of owning and operating it, which road was used for the transportation of passengers over and upon its lines. It also alleges,. simply, in reference to the other road, that said Electric Co. was then operating for the carriage of passengers for hire, and was a common carrier, omitting any reference to defendant’s consent to such operation. The cause of the injury is alleged to have been the negligence of some person or persons in charge of defendant’s train 031 defendant’s road, as aforesaid, such persons being in charge of such train by the consent of defendant, in this, that, after discovering the peril of the train in which plaintiff was riding, and after discovering plaintiff’s peril, the said persons failed to give the usual and proper signals which would have enabled the train on which plaintiff was riding to avoid the collision, or would have enabled plaintiff to escape from the impending danger, but caused or permitted their train to run until it collided, &c.

The seventh count, containing the same introductory averments as the sixth, charges as the negligence causing the injury, a failure to ring the bell or blow the whistle, at short intervals, while moving within and passing through the city. '

The eighth count, with the same introduction, charges, as the 3iegligence causi3ig the injury, a failure to stop or check the train, after discovering the peril of plaintiff’s train and of herself.

The tenth count is, in legal effect, the same as the sixth.

The eleventh count is, in effect, the same as the eighth.

None of the demurrers to these counts, either in the original or amended forms of the counts, were well taken.—H. A. & B. R. R. Co. v. South, 112 Ala. 642—a ' case growing out of the same collision and isivolving substantially the questions raised by these demurrers-.

We think there is no merit in the objection that the sixth count alleges alternative acts of negligence. The plaintiff’s injury, as the facts are averred, was an incident of the collision of trains. Without the principal fact, to-wit, the collision, the incident, to-wit, the injury, would not have happened; but it does not follow that the incident (which is the cause of action here) might not have been prevented by the appellant, notwithstanding the happening of the principal fact. It was the duty of the defendant, if under the facts and rules of law' governing such cases, it could have done so, to apply such means as would have prevented plaintiff’s injury, either by prevention of the collision itself, without which there could have been no injury, or by enabling the plaintiff to avoid injury, notwithstanding the collision might have been unavoidable. -The count avers failure to perform this duty. We see nothing in it opposed to good pleading. The demurrers do not specifically raise the objection that the count does not state, with sufficient detail, how the giving of usual and proper-signals would either have prevented the collision or enabled the plaintiff to otherwise escape injury; hence we do not consider the sufficiency of the count, in those respects.

The fifth plea, whilst it alleges that the persons who were operating the train alleged to have done the injury, were operating it without the knowledge or consent of the defendant, yet undertakes to defend by exculpating them ; and fails to do so, legally,'by the plea, either in its original or first amended form. It fails to show that the injuries to plaintiff would not have been avoided by the giving of signals, the failure to give which was charged in some of the counts, as the cause of plaintiff’s injury. The demurrer to the plea was properly sustained.

Each of the other pleas from 6 to 9, inclusive, as first amended, to which demurrers were sustained, were subject to the same infirmity.

The belief of the persons in charge of the train, based merely upon the fact that they had reason for such belief, as to what was proper for them to do, does not necessarily justify or excuse. The belief, to justify, must have been based upon such a state of facts and circumstances as would have induced a reasonably prudent and cautious person, similarly situated, and having reasonable skill for such a position, viewing all the surroundings, and exercising such skill, prudence and caution, to believe that the course pursued was the proper one. The eleventh plea was, therefore, bad and subject to the demurrer assigned.

Upon • the undisputed evidence, the defendant was responsible for any actionable negligence committed by the persons operating its train on the occasion in question ; so that the question asked Brown, as to renting the train from Augur and Bradford, was of no importance, and could have done the defendant no harm.—H. A. & B. R. R. Co. v. South, supra. Upon the same principle, there was no error, prejudicial to the defendant, in the first oral instruction to the jury, to which exception was reserved; nor in the refusal to give charge 23 requested by defendant.

The questions asked Brown by plaintiff, “Did you give her sand ?” and, “Was the sand pipe between the wheels ?” were allowable under the first, if not other counts of the complaint.

As fully explained in A. G. S. R. R. Co. v. Burgess, 114 Ala. 587, referring to other recent decisions of this court, we are compelled to hold that the second oral instruction to which exception was reserved was erroneous. Under these late authorities, the genera] expressions of the long line of preceding decisions (which no doubt influenced the court to give this instruction) were modified or explained, as stated in A. G. S. R. R. Co. v. Burgess, 114 Ala. 587, supra. The facts hypothesized in the instruction, are now held to constitute nothing more than simple negligence. To constitute willfulness it must appear that the engineer was conscious, at the time, that he was not using the means he ought to use to prevent the injury. If, in good faith, he did what he thought was best, it matters not how far he may have failed in skill, or erred in judgment, or what mere inadvertence or negligence may have caused him to do or omit what was best not to have been done or omitted, he can not be said to have willfully or wantonly caused the injury. We remark, that under the influence of this principle, none of the counts of the complaint charge willfulness or wantonness. They all charge simple negligence only.

Defendant can not complain of the third oral instruction.

The good faith or the honest belief of the engineer, in what he did, does not, of itself, show that there was no negligence on his part. Charges 3, 43 and 44 requested by the defendant were, therefore, bad.

Defendant’s charges 5, 7, 9, 14 and 15, ignore those counts charging failure to give signals. Some; if not all of them, also ignore the principle that the giving of the signals might have prevented plaintiff’s injury, by enabling her to escape from the train, although the collision of the trains might have been unavoidable by anything the defendant could have done.

Charge six is bad under the principle last stated. It only excuses the collision of trains, whereas, the exercise of all due care by the persons operating the train might have enabled the plaintiff to escape the dangers of the collision.

The subject-matter of charge number 28 was not in issue in the cause, and the court was not required to instruct the jury, at all, in reference to it.

There was evidence tending to support each count of the complaint, to which the several general charges requested by defendant referred, and the charges, in consequence, were properly refused.

For the single error of giving oral charge number two, the judgment is reversed and the cause remanded.

Reversed and remanded.