Newberry v. Atkinson , 184 Ala. 567 ( 1913 )

DOWDELL, C. J.

— -This is an action for damage brought by the appellant for alleged personal injuries. The complaint originally contained two counts, to which two others were added by amendment; the first three being for simple negligence, and the fourth for wanton, willful or intentional injury. There were nine pleas; the first two being the general issue, and the remainder setting up contributory negligence — to which latter pleas demurrers were sustained in so' far as they attempted to answer the fourth count. Upon the issues thus framed, there Avas a verdict and judgment rendered in favor of the defendant receivers, from Avhich the plaintiff prosecutes this appeal.

There are numerous assignments of error, based upon the overruling of plaintiff’s demurrers to pleas, rulings upon the evidence, and the giving of special charges requested by the defendants.

The evidence in behalf of the plaintiff tended to prove only Avillful or Avanton injury, while the evidence introduced by the defendants tended to prove that there was no negligence of any sort on the part of the defendants' or their employees, but that plaintiff’s injury was occasioned by her OAvn negligent act. The testimony of the plaintiff and that of her son, being the only evidence introduced by the plaintiff to show how the injury was caused, was to the effect that she was alighting from the train, after it had stopped at Talladega, several passengers preceding her safely, using the footstool placed on the ground in front of the steps, and that AA'hen she, the plaintiff, was in the very act of ■getting off, poised on the bottom step, her foot having •descended to within a few inches of the footstool, the flagman, standing with uplifted hand apparently to assist her, kicked the stool from under her, causing the plaintiff, to fall heavily to the ground, sustaining painful injuries. To use plaintiff’s own words, “As I started to make the step, the flagman kicked the stool out.” All of the testimony for the plaintiff went to show that his so kicking the stool from under her was a wanton and willful act, and done under such circumstances as that he was bound to know, and would not be heard to deny, that injury would probably follow. According to the evidence, the flagman was standing by the side Of the steps, helping passengers to alight, and was within a foot and a half of the plaintiff, having one of his hands on the iron railing, and the other extended upward toward her as if he intended to assist her as he had the others, thus lulling plaintiff into a sense of security, and yet, with this situation before his eyes, according to all the plaintiff’s evidence, the flagman proceeded to kick the stool from under her as she was stepping downward, naturally and almost inevitably causing her to fall. The flagman, under such circumstances, not only had notice, but was chargeable with actual knowledge, that such kicking of the stool would in all probability cause serious consequences, and the same was unquestionably a wanton and willful act. This being the only negligent act proven or attempted to be proven in this case, the plaintiff could not recover under the first, second, or third counts of the complaint, charging simple negligence only. — Louisville & Nashville R. R. Co. v. Markee, 103 Ala. 160, 15 S. W. 511, 49 Am. St. Rep. 21, and the cases following it, down to and including L. & N. R. R. Co. v. Perkins, 152 Ala. 133, 44 South. 602.

The fourth count averred that “said receivers, through their agents, servants, or employees, while acting within the line and scope of their authority, wantonly, willfully or intentionally injured the plaintiff by causing her to he thrown or to fall as she was disembarking from one of its trains as a passenger,” etc. This count is in trespass, charging the defendants with wantonly or willfully causing plaintiff’s injury, and comes within the rule laid down in the case of City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389. In that case, the averment of the complaint was that “the defendant, through its agent or servant, John McClary, wantonly, willfully, or intentionally caused an ice wagon to run against plaintiff, throwing plaintiff to the ground and inflicting upon her serious injuries,” etc. It was there said: “The charge involves the affirmative participation of the defendant in the act of driving the wagon against the person of plaintiff, and not merely the defendant’s responsibility for the act of its servant. It is in effect to say that the vehicle was run against the plaintiff by direction of the defendant. * * To sustain them, proof of actual participation on the part of the defendant in the damnifying act was essential. No such proof, nor any evidence tending to establish such participation, was adduced.” The added averment in this count that the wanton or intentional injury was done by such servants while acting within the scope of authority vested in them by the defendants adds force to the implied charge that the act was, in effect, done by the direction of the defendants. In the case of B. R. L. & P. Co. v. Hayes, 153 Ala., on page 189, 44 South., on page 1036, it was said: “The fifth count of the complaint avers that ‘defendant then and there, by its servants or agents, so wantonly conducted itself in and about the use, management, and operation of one of its cars * * * as to wantonly run said car with great violence against the plaintiff.’ The count charges the corporation with actual participation in the damnifying act; and, as there was no proof to support the averment, the defendant was entitled to the affirmative charge requested as to this count.” In the case of Bessemer Coal Co. v. Doak, 152 Ala. 166, 44 South. 627, 12 L. R. A. (N. S.) 389, it was held that the allegation that the defendant, by its agents, etc., “while in the line or scope of their employment,” wantonly exploded, etc., sufficiently showed that the act of the servant was the act of the master, and “sufficiently alleges the wanton conduct' against both the defendant company and Griffin. * * * This count is in trespass, alleging willful, wanton, or intentional trespass against this defendant and also the defendant Griffin; and, to sustain it against this defendant, proof of actual participation on the part of the defendant in the damnifying act was essential.” It must be held, therefore, that in this case the fourth count is in trespass, and by its averments charges the defendants with participation in the damnifying act; and, there being no evidence to support such charge, the defendant was entitled to the affirmative charge with respect to this count, as well as to the other counts of the complaint for the reasons hereinabove pointed out.

The defendants being entitled to the general affirm - ative charge, with hypothesis, under all the counts in the complaint, none of the assignments of error, based upon the court’s rulings on demurrers to the pleas and the giving of special charges requested by the defendant, need be considered; for the errors committed, if any, were harmless, and could not have been of injury to the plaintiff. — Whitmore v. Ala. C. C. & I. Co., 164 Ala. 125, 51 South. 397, 137 Am. St. Rep. 31; Griffin v. Bass Foundry & Machine Co., 135 Ala. 490, 33 South. 177; Western Union Tel. Co. v. Whitson, 145 Ala. 426, 41 South. 405; L. & N. R. R. Co. v. Johnson, 128 Ala., 634, 30 South. 580. In the last-named case it was held that where under the evidence the plaintiff was not entitled to a recovery, and, the court having given the affirmative charge in behalf of defendant, the rulings on the evidence, even if they resulted in the admission of immaterial evidence, were not injurious to plaintiff, and therefore not ground for reversal. It is possible, however, for the exclusion of testimony to go to the extent of producing the very absence of proof which entitles the opposite party to the affirmative charge on the evidence admitted; hence we will consider the assignments of error (only two) in this case, based on the sustaining by the court of defendant’s objections to- certain questions asked by the plaintiff.

The first of these is the sustaining by the court of defendant’s objection to the question asked by the plaintiff: “You are just as positive about that as you are anything else you have testified about?” Although this form of question has been tolerated, this court has expressly decided that a case will not be reversed for sustaining an objection to this sort of question. — Gregory v. State, 148 Ala. 566, 42 South. 829.

The court also sustained an objection to the following question: “If the flagman swore she fell, and her shoulder hit the ground, he was mistaken?” This ruling was proper, because it is the province of the jury to determine whether a witness is mistaken, and it is not permissible to ask one witness if another was mistaken. — Johnson v. State, 94 Ala. 35, 10 South. 667; Braham v. State, 143 Ala. 28, 38 South. 919.

There being no reversible error in the record, the judgment of the court below will be affirmed.

Affirmed.

Anderson, McClellan, and Somerville, JJ., concur. Mayfield, Sayre, and de Graffenried, , JJ., dissent, holding to the view that the case of City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 289, should be overruled.