Louisville N. R. Co. v. Johnson , 204 Ala. 150 ( 1920 )

The plaintiff was struck and injured by one of the defendant's fast passenger trains approaching him from behind, while he was walking along defendant's track on the cross-ties outside of the rails. The suit is properly brought against the defendant company under the authority of the act of Congress of March 21, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115 3/4j).

Counts 1, 3, and 4 went to the jury, and each count is based upon a charge of negligent omission of duty after the discovery of plaintiff's peril. Count 1 is sufficient in its allegation of negligence on the part of defendant's servants in charge of the train, and its proximate causation of the injury complained of. So. Ry. Co. v. Stewart, 153 Ala. 133, 45 So. 51. The demurrer to that count was properly overruled.

The real issue in the case was under count 4, which charged that one Cobb, the engineer, in charge, after his discovery of plaintiff's peril, negligently failed to blow the whistle or sound the alarm on his engine, in consequence of which the engine was caused to run upon plaintiff. Indeed, no evidence was offered to show any other negligence.

While the testimony offered by defendant to show that its engineer blew the whistle promptly and continuously when he first saw plaintiff on the track about 200 feet away was positive, and to our minds convincing, there was other testimony, though mostly of a negative character, from which the jury might have inferred that the whistle was not blown. Our reading of the evidence convinces us that it was a question of fact for the jury to determine whether it was or was not the engineer's duty to blow the whistle as a warning, and whether or not he did so, and also whether or not, if he had done so at the earliest possible moment, its warning would have reached plaintiff in time to enable him to escape the injury. We so held in the companion case of L. N. R. R. Co. v. Phillips,202 Ala. 502, 80 So. 790, where the plaintiff, Phillips, was killed by the same train at the same time and place, and where the evidence on this issue was substantially the same as here. These questions are discussed to the same conclusion in A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 279, 47 So. 84. We do not overlook appellant's suggestion that, as the train was running down grade at 45 miles an hour, and would have covered the 200 feet of distance to plaintiff in approximately 3 seconds, the sound of the whistle could not have reached plaintiff in time to warn him of the danger and allow him to escape it. The argument is plausible enough, but we would not venture to affirm it as a conclusion of law, especially as the speed of the train must have been materially slackened by the prompt application of the air-brakes.

Whether or not plaintiff was guilty of contributory negligence, in not conserving his safety after he became aware of his immediate peril, was, under the circumstances shown, very clearly a question for the jury. The general affirmative charges for defendant, as severally requested, were properly refused.

Charges 9 and 17, refused to defendant, were substantially covered by other written charges, as well as by the general oral charge. Charge 24 was faulty in not predicating a blowing of the whistle with reasonable promptness after the engineer discovered plaintiff's peril. It appears that all the issues were fairly submitted to the jury under appropriate instructions.

The jury, after being out about six hours, reported to the court that they were unable to agree on the amount of their verdict for the plaintiff, and that they were "awful hungry" and would like to get off "some way or other." The court sent them back for further deliberation, with an exhortation to try to reach a conclusion. Defendant's counsel excepted to "their being in the jury room six hours without eating, and to their being sent back." We cannot hold the action of the trial court as erroneous or improper. While a sentimental philosopher has asserted that "hope deferred maketh the heart sick," it can hardly be assumed that a brief postponement of their gastronomical satisfaction operated as coercive cruelty upon the minds of the jury, so as to affect or restrain the freedom of their verdict. Moreover, the record shows that upon their second report of their inability to agree, they were allowed to dine, whereupon they deliberated again, and agreed.

We find no prejudicial error in the record, and the judgment will be affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.