Davis v. Smitherman , 209 Ala. 244 ( 1923 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Smitherman sues the defendant, appellant here, for damages to himself, his automobile, watch, and personal apparel, alleged to have been caused by the wanton conduct of appellant's agents or servants while acting in the line and scope of their employment in charge of one of appellant's locomotive engines. The injury occurred between 5 and 7 o'clock in the evening of December 12, 1918, at a point where the railroad operated by defendant crossed one of the public roads at Readers, near Bessemer, in Jefferson county.

The complaint as originally filed contained four counts, but the court in its oral charge eliminated counts 1, 2, and 4, and count 3 was submitted by the court to the jury under plea of general issue filed by defendant to it. The jury returned a verdict in favor of the plaintiff, and this appeal is from a judgment thereon by the court. This is the second appeal in this case. Payne v. Smitherman, 206 Ala. 591, 91 So. 575.

Count 3 is the same on this as on the former appeal, except it was amended by striking out John Barton Payne, Director General of Railroads, as Agent under section 206 of the Transportation Act of 1920, as party defendant, and inserting as sole party defendant in lieu of him James C. Davis, Director General of Railroads, as Agent under section 206 of the Transportation Act of 1920. This amendment was permissible, and authorized by sections 206a and 206d of the Transportation Act of 1920 (41 Stat. 461, 462). It was the same officer, the successor in office, and was not an entire change of party defendant. Payne v. Smitherman, 206 Ala. 591, 91 So. 575. This count was also amended by adding after the words "mental anguish" the following: "And his health and physical stamina have been greatly impaired." This count on former appeal was held sufficient as a wanton count. These amendments to it did not change its legal effect to make it demurrable, and the court did not err in overruling the demurrer assigned to it as amended. M. C. R. Co. v. Martin, 117 Ala. 367, 23 So. 231; Payne v. Smitherman, 206 Ala. 591, headnote 1, 91 So. 575.

The defendant filed 12 pleas to count 3; plea 1 being general issue. Demurrers to pleas 2, 3, 4, 6, 8, 9, 11, and 12 were sustained by the court. These pleas set up, or attempted to set up, facts constituting contributory negligence of the plaintiff in answer to count 3, which charged defendant with wanton negligence. A plea of contributory negligence is no answer to a count averring the wanton negligence of defendant caused the injury. A. G. S. R. R. Co. v. Frazier, 93 Ala. 45, 9 So. 303, 30 Am. St. Rep. 28; L. N. R. R. Co. v. Markee, Adm'x,103 Ala. 160, 169, 15 So. 511, 49 Am. St. Rep. 21; L. N. R. R. Co. v. Watson, 90 Ala. 68, 8 So. 249. These pleas of contributory negligence were no answer to this wanton negligence count numbered 3, and the demurrers of plaintiff to each were properly sustained by the court.

Pleas 5 and 10 attempt to or set up facts constituting wanton negligence of the plaintiff, which contributed to the injuries complained of in count 3. The wanton contributory negligence of the plaintiff would not justify the defendant in wantonly injuring him, and such a plea would be no bar to an action based on the wanton negligence of the defendant, as declared on in count 3. This was clearly declared by this court in L. N. R. R. Co. v. Orr, 121 Ala. 489, headnote 6, 26 So. 35. See, also, L. N. R. R. Co. v. Markee, 103 Ala. 161, 170, 15 So. 511, 49 Am. St. Rep. 21. The court properly sustained demurrers to pleas 5 and 10 to count 3.

Virgil Welch, witness for plaintiff, was asked the following question by plaintiff: "Do you remember the time of the accident that Mr. O. Smitherman had there at Readers on September 13, 1918?" This witness saw the collision, and the question was a proper preliminary one. The defendant objected to the question because it was "leading and suggestive," which objection the court overruled. The court in its sound discretion may permit a party calling a witness to propound leading and suggestive questions, and, if the discretion is not abused, the court will not be placed in error. This discretion was not abused by the court in this instance. Section 4018, Code 1907; Cooper v. Slaughter, 175 Ala. 211, headnote 6,57 So. 477.

Questions were properly allowed by the court to be propounded to witnesses who saw the train and automobile running at the time of the collision as to the rate of speed of either. They could testify, if they knew, whether it was running fast or slow, or the number of miles per hour, as it appeared to them. True, running slow or fast are relative terms, but the meaning of the witness using them can be drawn out on cross-examination by the other party; such evidence in case of a collision is germane to the issue. Montgomery St. Ry. Co. v. Shanks,139 Ala. 489, 37 So. 166; Birmingham Ry. v. Franscomb, 124 Ala. 621,27 So. 508; Cedar Creek Store Co. v. Steaham, 187 Ala. 622,65 So. 984; Kansas City, M. B. R. Co. v. Crocker,95 Ala. 412, 11 So. 262; Payne v. Roy, 206 Ala. 432, 90 So. 605, headnote 3.

Plaintiff's witness Welch saw the collision, but did not know Smitherman, the plaintiff, was the person that was injured; and the next morning he saw Dr. Smith. The court would not permit defendant on cross-examination to ask Welch if "he [Dr. Smith] told you that Mr. Smitherman got hurt?" In this there was no error, as it was inadmissible. It was clearly hearsay testimony. The parties were not present during the conversation. 6 Michie, Dig. 257, § 228. The following question to this witness: "So after hearing Mr. Smitherman gets [got] hurt, you come up here and testify about seeing him get hurt, do you?" — was argumentative, and properly disallowed by the court. The question, "What was it Mr. Ezell came to see you about?" called for hearsay evidence, and the court did not err in sustaining objection of plaintiff to it. The witness testified he saw Mr. Ezell, and the question, Did Ezell come to see you?" could shed no light on the issue. The witness testified, "Mr. Ezell did not come to me and talk to me about the case." The defendant did not show the court what he expected as an answer to the question, and that it would be relevant to the issue in the case. The court did not err under the circumstances in sustaining objection to the question, "Did Ezell come to see you?" Autrey v. State, 190 Ala. 10-13, 67 So. 237; B. L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262; 6 Michie, Dig. 257, § 228.

The court did not err in permitting proof of the physical condition or appearance of plaintiff as to health, strength, and weight prior to the collision, his injuries in the collision and the effect of it on his consciousness, his appearance as to health, strength, and weight afterwards by persons who knew, saw, and observed him. L. N. R. Co. v. Hayward, 201 Ala. 9, and authorities therein cited, headnote 2,72 So. 22; Thornton v. State, 113 Ala. 43, headnote 1,21 So. 356, 59 Am. Rep. 97.

The injury occurred at a public crossing between 5 and 7 o'clock p. m. The following evidence as to the surroundings at this crossing at that time was properly allowed by the court to go to the jury:

"The population is quite large, but the buildings are not. * * * There are at least 300 houses, large office building, commissary, extensive works, and hospital surrounding the place. About 1,000 men worked there. * * * This public road which crosses the track is the main thoroughfare leading from Bessemer to Lacey's Chapel. * * * Somebody passing there constantly; there is something passing, some kind of a vehicle, passing there constantly. * * * Well, there is much traffic at that time [7 to 8 o'clock p. m.] across that point as at any other time, and it was noisy at that time there from the rock crushers, hoisting engines and compresses."

The meaning of the relative terms "quite large" and "main thoroughfare," as used by the witnesses, could be learned from them by proper cross-examination. This evidence tends to show the size of the community at the public crossing, and the use of it by the public, and it was admissible for the jury to consider if its use was so common and constant as to charge the operators of defendant's train with notice thereof. In A. G. S. R. R. Co. v. Arnold, 84 Ala. 168, 4 So. 364, 5 Am. St. Rep. 354, this court said:

"Precautionary requirements increase in the ratio that danger becomes more threatening."

See, also, A. G. S. R. R. Co. v. Snodgrass, 201 Ala. 653,79 So. 125; Payne v. Roy, 206 Ala. 432, 90 So. 605; South. Ry. Co. v. Stewart, 179 Ala. 304, 60 So. 927; L. N. R. R. Co. v. Johnson, 201 Ala. 611, 79 So. 43.

The car of plaintiff injured in the collision was a Ford, and damages for its injury were claimed in this third count. The court permitted a witness to testify, "I cannot remember just what the cash value was at that time [time of collision] of a new Ford car," and that the car of plaintiff's was practically a new car. The age, use, and condition of the car before the collision and its condition after the injury were relevant to go to the jury to be considered by them in determining the amount of damage done to it. The defendant objected to the questions calling for the above answers, but did not move to exclude the answers. The defendant therefore has no just complaint to make to that evidence.

A witness reached the crossing where the collision occurred about 30 minutes or three-quarters of an hour afterwards, and the court allowed him, over defendant's objection, to testify where the car was, that it was not at the crossing, but was about 159 feet from it on side of the track, and its condition. It clearly appears to have been in the same place and in the same condition from his testimony as was shown by other witnesses who saw it immediately after the accident. In this the court did not err.

There was evidence tending to show that plaintiff was unable to work after the collision on account of the injuries for two months or more, that he was unable to work full time afterwards, and he was a carpenter, and also evidence showing the amount of wages he received when able to work. This was competent as tending to show what he lost by the injuries by wages when unable to work after the collision, which is claimed in the complaint.

There are 97 errors assigned in this case. All are insisted upon, but all are not argued by appellant. More than half are based on admission or rejection of evidence by the court over objection of the defendant. We have discussed all the material ones, and considered all the others, and find no error by the court therein on which the defendant can predicate reversible error. None of the charges are numbered or lettered. We will for identification number the given charges, and letter the refused charges.

Charges lettered by us A, B, and C were refused by the court. Under a wanton negligence count compensatory or punitive damage, or both, may be recovered in this state. Clinton Min. Co. v. Bradford, 200 Ala. 308, headnote 13, 76 So. 74; Payne v. Smitherman, 206 Ala. 591, 91 So. 575. The defendant, the Director General, is not liable for punitive damages for the wanton acts of his servants or agents while acting in the line and scope of their employment, but the defendant is liable for compensatory damages growing out of the wanton conduct of his servants while so acting, as averred in count 3. Mo. Pac. R. Co. v. Ault, 256 U.S. 554, 41 Sup. Ct. 593, 65 L.Ed. 1087; Payne v. Smitherman, 206 Ala. 591, 91 So. 575.

There was evidence that plaintiff sustained actual damages to his person and property. These charges denied him the right to recover under this wanton negligence count these compensatory damages, and the court did not err in refusing them. Mo. Pac. R. Co. v. Ault, 256 U.S. 554, 41 Sup. Ct. 593, 65 L.Ed. 1087; Clinton Min. Co. v. Bradford, 200 Ala. 308, headnote 13,76 So. 74; Payne v. Smitherman, 206 Ala. 591, 91 So. 575.

The court properly refused the following written charge requested by the defendant:

"The court charges you that there is no duty on a railroad to keep a lookout on each side of a locomotive as it approaches a crossing."

This charge is misleading as it invades the province of the jury, and does not state the law correctly as applicable to the evidence in this case. However, the defendant cannot complain, as charge numbered 1 by us, given by the court, covers this refused charge. At a populous public crossing in a city or thickly settled community, where persons are known to be likely or probably crossing the track, it is the duty of the person operating and running the train to be on a lookout for persons when approaching the crossing. Duncan v. St. L. S. F. R. R. Co., 152 Ala. 118, 44 So. 418; A. G. S. R. R. Co. v. Snodgrass, 201 Ala. 653, 79 So. 125.

The following charge requested by defendant was refused by the court:

"To constitute wanton negligence, an act done or omitted to be done must have been done or omitted with a present knowledge that injury would result."

This was correctly refused because of the words "that injury would result." It is only necessary that injury would likely or probably result. A. G. S. R. R. Co. v. Guest, 144 Ala. 373, headnote 4, 39 So. 654. The principle of law invoked by this refused charge was fully covered by given charges numbered by us 3, 4, and 5. Gen. Acts 1915, p. 815, amending section 5364, Code 1907.

Refused charges lettered by us O and P were properly refused by the court. They were misleading, argumentative, invaded the province of the jury to consider all the evidence, and singled out and unduly stressed a certain part of the evidence.

Refused charges lettered by us Q and R did not state the law correctly. This was a public crossing in a thickly settled community, where persons are probably crossing, which was known to the servants of the defendant operating the train, and it was their duty to be on the lookout for persons when approaching the crossing, and not to presume that plaintiff or other persons would not be crossing the track. Duncan v. St. L. S. F. R. Co., 152 Ala. 118, 44 So. 418; A. G. S. R. Co. v. Snodgrass, 201 Ala. 653, 79 So. 125. Charge lettered by us R-2 was properly refused by the court. There was only one plea, and it was the general issue to count 3.

Charge lettered S was properly refused by the court. The principle of law attempted to be declared by it was given in charge 5. This charge does not state the law correctly. It is true the rights of the public and of a railroad company to use the public streets and public highways, where they are crossed by a railroad track, are "mutual and reciprocal," and the trains on the railroad track have the right of way at these public highway crossings; yet this does not "exempt the railroad from the duty to try to avoid collisions thereat." Weatherly v. N.C. St. L. R. Co.,166 Ala. 575, 51 So. 959. But this charge directs that plaintiff cannot recover if he failed to yield to this right of way of the defendant's train and his act in failing proximately contributed to his injuries. This attempts to make the contributory negligence of plaintiff answer a charge of wanton negligence of the defendant, and thereby bar plaintiff of the right to recover. This principle of law has been discussed in this opinion. L. N. R. R. Co. v. Orr, 121 Ala. 489, headnote 6, 26 So. 35; L. N. R. R. Co. v. Markee, 103 Ala. 160,170, 15 So. 511, 49 Am. St. Rep. 21.

Written charges requested by defendant, lettered by us D, E, F, G, H, I, and J were refused by the court. The defendant by these charges sought to bar the right of plaintiff to recover, if the jury believed from the evidence that plaintiff and defendant were both guilty of wanton negligence which proximately caused or contributed to the injuries complained of in the third count. The wanton contributory negligence of plaintiff is no answer or defense to a count charging wanton misconduct of the defendant as hereinbefore shown, and these charges were correctly refused by the court for that and probably other reasons not necessary to mention here. L. N. R. R. Co. v. Orr, 121 Ala. 489, headnote 6, 26 So. 35; L. N. R. R. Co. v. Markee, 103 Ala. 160, 170, 15 So. 511, 49 Am. St. Rep. 21.

Charges lettered by us K, L, M, and N were in writing requested by the defendant, and were each refused by the court. Charge N was calculated to mislead the jury, and was properly refused by the court. It stated, "plaintiff cannot recover on account thereof," and the jury had the right to consider this with the other evidence to see if the defendant was guilty of wanton misconduct, and if plaintiff was entitled to recover. The principle of law attempted to be stated in charges K, L, and M was substantially, correctly, and fairly given to the jury in the court's oral charge and in given charge numbered 2 requested by defendant. Section 5364, Code 1907, amended Gen. Acts 1915, p. 815.

The general affirmative charges, with hypothesis in favor of the defendant, were properly refused by the court. There was evidence from which the jury could reasonably infer that the wanton conduct on the part of appellant's employés in charge of the locomotive, and while acting in the line and scope of their employment, proximately caused the injuries described in the complaint. The evidence was in conflict by positive proof or by reasonable inferences therefrom on this subject, which was a material fact in issue. The general affirmative charge should never be given when there is a conflict in the evidence on a material fact in issue. Birmingham South. R. R. Co. v. Harrison, 203 Ala. 284, headnote 6, 82 So. 534; McMillan v. Aiken, 205 Ala. 35, headnotes 9-11, 88 So. 135.

It is argued in brief of appellant that the amount of the verdict is excessive, but we find no such ground stated in the motion for a new trial. We cannot say under this record that the court who heard the witnesses testify erred in refusing to grant the motion for a new trial.

The record is free from reversible error, and the judgment is accordingly affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.