Ala. Great Southern Ry. Co. v. Guest , 144 Ala. 373 ( 1905 )

DOWDELL, J.

On the former appeal in this case (Alabama Great Southern Railroad Co. v. Guest, Administrator, 136 Ala. 348, 34 South. 968) the principles of the law applicable to the case under the issues on which it was last tried were then very fully stated. There is no substantia] difference in the facts now and then. The law as there stated, in the opinion of Haralson, J., applies with equal force and pertinency here. The case was tried on the counts in the complaint counting on willful or intentional misconduct on the part of the defendant’s servants or agents, or that which is in law the equivalent of willfulness, wantonness, or reckless indifference to probable” results. What was said on the former appeal may well be repeated here : “It cannot be denied that plaintiff’s intestate was a trespasser on defendant’s track, to whom the company owed no duty except the exercise of reasonable care to avoid injuring him, if and after his peril became apparent to its employes; but they had no right to kill him on this account if they could avoid it. Haley v. K. C. M. & B. R. R. Co., 113 Ala. 640, 21 South. 357. The doctrine thus stated and recognized, is not to he taken as of unqualified and unshaded application in all cases. A trespasser may not be yet discovered on the track of the company, but if the employe had reason to believe he was there it would be wantonness to take no care not to kill him. 'When a railroad runs its track through districts of a city, town, or village densely populated, and the demands of trade and public intercourse necessitates the frequent crossing of the track, it is the duty of those operating an engine over the track in such places to keep a lookout. This duty is not especially imposed by statute, but arises from the likelihood that in such places there are persons on the track, and the bounden duty to guard against inflicting death . or injury in places and under, circumstances where and when it is likely to result unless due care is observed. The duty arises when the circumstances exist which call for its exercise.’ — S. & W. R. R. Co. v. Meadors, 95 Ala. 137, 10 South. 141; L. & N. R. R. Co. v. Webb, 97 Ala. 308, 12 South. 374; L. & N. R. R. Co. v. Anchors, 114 Ala. 492, 22 South. 279, 62 Am. St. Rep. 116; M. & C. R. R. Co. v. Martin, 117 Ala. 367, 23 South. 231; L. & N. R. R. Co. v. Brown, 121 Ala. 221, 25 South. 609. ‘To run a train at a high rate of speed and without signals of approach, where the trainmen have reason to believe there are persons in exposed positions on the track, as over an unguarded crossing in a populous district of a city, or where the public are wont to pass on the track with such frequency and in such numbers — facts known to those in charge of the train — as that they will be held’ to a knowledge of the probable consequences of maintaining greater speed without warning, so as to impute to them reckless indifference in respect thereto, would render the employer liable for injuries resulting therefrom, notwithstanding there was negligence on the part of those injured and no fault on the part of the servants after seeing the danger. Ga. Pac. R. R. Co. v. Lee, 92 Ala. 262, 9 South. 230; Highland A. & B. R. R. Co. v. Robbins, 124 Ala. 113, 27 South. 422, 82 Am. St. Rep. 153.”

The doctrine that the duty of those in the management and control and running of locomotive engines and cars not to willwully or intentionally or wantonly kill or injure a trespasser is just as imperative as if the person so injured at the time of such injury was lawfully at the place is too well settled to admit of question. In othey words, the duty owing to a trespasser not to willfully, intentionally, or wantonly injure him is as great as the duty owing 1» one who is not a trespasser. In such cases, the law makes no possible distinction. If the conditions, as to the numbers and frequency of persons upon the tracks of the railroad company and of which its agents or servants have knowledge, exist, so as to constitute it in law wantonness to run its 'trains at a dangerous rate of speed at such time and place, then it is wholly immaterial whether such conditions are created by trespassers or by such as may have a lawful right to be on the tracks. If the caboose and two cars were cut loose from the train and allowed to run down the track in the manner and way and under tlie circumstances and conditions as averred in the complaint, such act and conduct on the part of those in control of the 'train was as a matter of laAV wantonness, and subsequent efforts on the part of defendant’s servants or agents, after discovering the peril of the deceased, to avoid, injury to him, would not exempt the defendant from liability for the injury that was inflicted.

Charge No. 41, given at the instance of the plaintiff, states the law as above laid down, and the giving of it Avas, therefore, free from error. Likewise charge 42, given for the plaintiff, asserts the doctrine as above stated. It may be that this latter charge had a misleading tendency in the last clause, and for that reason might have properly been refused yet the giving of it does not constitute reversible error. When the charge is taken as a whole, it is rendered evident that the statement in the last clause — “notwithstanding there was no fault on the part of the servants of defendant” — had reference to the conduct of the servants after the discovery of the peril of the deceased. It was certainly open to the defendant, if he conceived that there was any tendency to mislead the jury in this respect, to have counteracted any such tendency by requesting an explanatory charge.

The eighth count of the complaint does not aver that the detached cars and caboose Avere being run at a high and dangerous rate of speed at the time they struck the deceased except possibly in an inferential way. It is averred in the first part of this count that the tAVO cars and caboose, which were detached from the train, were allowed to run down the main line of defendant’s track, and in the conclusion of the count it is averred: “And on the day aforesaid, a few feet south of said public crossing at a point near said freight depot, defendant’s agents aud servants ran said detached cars and caboose willfully, wantonly, or intentionally upon or against said William Dean, and killing him.” The evidence was- in conflict as to the rate of speed of the cars at the time they struck the deceased. One witness put the rate as low as two or three miles an hour. It was, therefore, open to- the jury, under all the evidence, to find that the cars and caboose, when detached, were allowed to run down the main line at a high and dangerous rate of speed, and when they struck and killed the deceased the speed at this particular time, by the subsequent efforts of the defendant’s servant or servants after discovery of the deceased’s peril, had been checked to the low rate of two or three miles an hour; and on this phase of the case, under the law as we have above laid down, written charge No. 35, requested by the defendant, was properly refused.

Charge 29, requested by the defendant, was substantially covered by written charges 13 and 15, given at the request of the defendant. Charge 18, requested by the defendant, was argumentative, and there was no- error in its refusal. Charges 19, 31, 32, 33 and 34, refused to the defendant, assert a contrary doctrine to that hereinabove laid down, and were therefore properly refused. Charges 20 and 30 were substantially covered by other written charges given at the instance of the defendant, and for this reason, if no other, there was no reversible error committed in their refusal. Charge 39 was faulty in form, and for this reason was properly refused.

Charges 23 and 37, requested by the defendant, were not abstract, as contended in argument by counsel for appellee, and on the facts hypothesized correctly stated the law. The trial court committed error in refusing to give each of said charges. It is insisted by counsel for appellee that charge 38, refused to- the defendant, was substantially covered by written charges given at the-instance of the defendant. We fail to find in the record any substantial duplicate for charge 38 in the written charges given for the defendant. This charge should have been given as requested. The definition of wantonness as contained in the charge is supported by Brown’s Case, 121 Ala. 221, 25 South. 609, and Bank’s Case, 132 Ala. 471, 31 South. 573.

By .tlie Introduction in evidence on the part of the defendant of the showing as to the witness Shafer, the defendant tendered an issue of suicide by the plaintiff’s intestate, and in so doing made it competent for the plaintiff to offer evidence in rebuttal of this theory; and such was the character of the evidence objected to by the defendant. The general rule of the relevancy of evidence is that all facts are admissible in evidence which logically tend to prove or disprove the fact in issue. — 11 Am. & Eng. Ency. Law (2d Ed.) 502. We find no error in the rulings of the court on the objections to evidence along this line. It was competent to show the condition as to the frequency and numbers of persons passing along the defendant’s tracks at the time and place in question, and there was no1 error in the rulings of the trial court on the defendant’s objection to evidence offered along this line.

For the errors pointed out, the judgment of the court below must be reversed, and the cause remanded.

Beversed and remanded.

Haralson, Simpson, and Anderson, JJ., concur.