Birmingham Ry. L. & P. Co. v. Drennen , 190 Ala. 176 ( 1914 )

McCLELLAN, J.

This is the second appeal in this cause. 175 Ala. 338, 57 South. 876, Ann. Cas. 1914C, 1037. The importance of the matter to both litigants has emphasized the care employed in the consideration of the subjects of errors urged. The evidence has not only been cautiously considered with the view to determining the support vel non accorded the material averments of the counts ascribing Drennen’s 'death to simple negligence and to wanton or willful wrong, on the part of servants of the defending carrier, but also with that added degree of concern for a sound conclusion which exhaustive and able discussions in briefs naturally inspire in a reviewing tribunal.

(1, 2) Our opinion is that the issues made by both of the counts 1 and 2 could only, under established doctrine in this jurisdiction, be resolved and the truth pronounced by the jury. There was credible evidence tending to show the presence of Drennen, a traveler in a vehicle in a public street, in a position of peril before an on-coming street car; that the mortorman thereof was looking ahead over the point in which he was, if the car came on, imperiled; that the distance at which the car was when his peril became obvious to one in the motorman’s position was sufficient to allow the car to be stopped, short of impact with the vehicle, by the prompt, orderly, and skillful action of a reasonably competent man in that station and under the circumstances existing; and that Drennen was killed as the immediate result of the impact. There is no positive testimony, usually presented in such cases, to the effect that the car could, under the circumstances, have been stopped, or checked in speed, within a specified distance ; but there is testimony to the effect that this car was actually stopped within such space as that if the effort to stop the car had been made at the time Drennen’s peril was first observable by the motorman, and he became obliged, by duty, to act to avert injury, the car could have been brought to a stop before impact with Drennen’s vehicle. There was testimony positively opposed to the indicated phases- of evidence; but this condition only served to institute conflicts that required the submisison of the issues to the jury.

Given findings of fact favorable to the plaintiff upon these elements of the issues, it was, according to repeated decisions here, competent for the jury, under the evidence, to deduce the conclusion that the motorman did not perform his duty in the premises. Whether this breach of duty was of the aggravated character declared on in the second count, or was the result of simple neglect as declared on in the first count, were questions for the jury’s consideration. If the jury credited the phases of the testimony tending to establish the conclusions of fact indicated, bases of liability were laid; and it cannot be said that, in determining these issues of fact as this jury did, there was such a departure from the line of rational reasonable deduction from the evidence before the jury, and the resolution of the issues to- a state of pronouncement thereupon, as could be characterized as palpably opposed to the weight of the evidence. Whether the motorman, advised, as phases of the evidence tended to show he was, of Drennen’s peril, failed or omitted to perform his duty, under the circumstances, with such conscious indifference to the probable consequences as amounted to a wanton disregard of Drennen’s actually known danger and safety, or was the result of purpose, were matters for the jury to determine. — Id., 175 Ala. 338, 347-348, 57 South. 876, Ann. Cas. 19140, 1037. While mere error of judgment, or mistake in action, or in omission to act under duty, will not, alone, suffice to warrant a finding that the act or omission charged is a wrong of a wanton or willful character, yet, whether that failure or omission to act, within duty, was characterized by a purpose to injure, or an indifference to probable consequences, in the presence of known (to the operative charged) hazard surrounding the party injured, and means and ability are available to avert the injury, the question of the character of the omission or act is for the jury. Such is the established doctrine of this court. It is too late to now enter upon its consideration with a view to its revision. There was no error in refusing the general affirmative charge as to either of the counts, or in overruling the motion for new trial. Prom these conclusions it also results that the court did not err in refusing to defendant special- charges 1 and 4.

(3, 4) Special charge 5, requested for defendant, would have denied consideration by the jury of that feature of the evidence which tended to show the distance in which the car, on this occasion, was actually stopped. The operation of stopping the car, when it was begun — at what distance the car was from the vehide when the stopping appliances were employed by the motorman — and the distance the car moved thereafter, until it was stopped, were of the res gestae of the event, and served, as stated before, to show, if credited, within what distance the car could haye been stopped. This was not opinion evidence, within the rnle requiring qualification of a witness who would express an opinion as to the distance in which a car, nnder like circumstances, could be stopped. If accepted by the jury, the indicated testimony affirmed a fact, not an opinion. The charge invaded the jury’s province, and was well refused.

(5) There was doubt raised by the evidence whether Drennen was thrown from the vehicle by the collision, ■or whether he jumped therefrom because of fear of the impending collision. The latter theory was pressed for defendant, in connection with the evidence that the car’s impact with the vehicle was slight and itself wrought little damage to the vehicle. The defendant requested, and the court refused, charge 9, which will be set out in the report of the appeal. It was substantially covered, even Avithout undue favor to defendant, by charge (Ave designate) X. Transcript, page 9. This charge Avill accompany 9 in the report of the appeal. The refusal of charge 9 Avas without prejudice to defendant.

(6) Charge 2 was not erroneously given for plaintiff. The effect of the charge Avas to advise the jury that Drennen’s jumping from the vehicle would not prevent a recovery, if that act of his resulted from the negligent or wrongful conduct declared on in the complaint. There is no plea predicating contributory negligence of Drennen’s asserted action in jumping from the vehicle. Hence the charge was not subject to criticism, made in brief, that it improperly denied effect to a pleaded issue.

(7, 8) There was no fault in charges 3 and. 5, given for plaintiff.

(9) Charges 7 and 8 given for plaintiff were accurate and applicable statements of established doctrine;, the former was specifically approved on previous appeal: The doctrine they applied to- the case at bar 'is. now too deeply grounded, in our jurisprudence to admit of its reconsideration with a view to change. Its. soundness is and must be finally accepted.

(10) The question set out in the seventeenth assignment of error doubtless evinced a strong case of pressure in the examination of a witness, but such matters-are committed to the sound discretion of the trial court. That discretion does not appear to have been abused in this instance. The substance of the inquiry made of the witness bore immediately upon the issues under investigation. There is no merit in the assignment.

There is no- error in the record. The judgment is therefore affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.