Hines v. Laurendine , 17 Ala. App. 350 ( 1920 )

The complaint as originally filed contained four counts. The first claimed damages for the negligent operation by defendant of one of its trains, in that it was caused to collide with plaintiff's truck automobile, which had stalled on defendant's track. The third count was for damages for conversion by plaintiff of defendant's truck automobile. The fourth count claimed damages for the breach of an agreement entered into by the defendant, whereby it promised to put in repair the automobile truck which had been injured by the collision. The second count was in trespass, and was withdrawn by the plaintiff. Counts 5 and 6 were afterwards added; count 5 charging subsequent negligence, and count 6 charging wanton and willful negligence. The general charge was for defendant as to count 6.

Assignments of error 1, 2, 4, 5, 8, and 9 are based on the proposition that counts. 2 and 4 were improperly joined. Code 1907, § 5329, provides that "all actions ex delicto" may be joined with actions "ex contractu" arising out of the same transaction or relating to the same subject-matter. A reading of these two counts shows that the alleged injury to the truck gave rise to the alleged promise to make the repair, that the facts in one instance gave rise to the facts in the other instance, and all growing out of one and the same transaction, and relating to the same subject-matter, the damage incident to the injury of plaintiff's auto truck. These assignments of error are not well taken. Union Marine Insurance Co. v. Charlie's Transfer Co., 186 Ala. 443, 65 So. 78; Gambill v. Fox Typewriter Co., 190 Ala. 36, 66 So. 655.

As we construe count 1, it is a count in simple negligence, and as such embraces initiative and subsequent negligence. L. N. R. R. Co. v. Calvert, 172 Ala. 600, 55 So. 812. The allegation in the count that plaintiff's auto "became stalled on the track" in no wise changed this to a count in subsequent negligence, thereby requiring the further allegation that defendant's servant, etc., knew of the perilous position of the plaintiff. Being a count in simple negligence, it was not necessary to allege therein that the auto was not stopped on the track as a result of the negligence of the driver thereof. This was a matter of defense, and the fact that it was "stalled" there rather tends to refute the idea that it was negligently there. The overruling of the demurrers to this count, which constitute the third, sixth, and tenth assignments of error was without error.

If there was error in overruling defendant's demurrers to the fourth count as amended, which we do not decide, then same was not hurtful to the defendant, for the reason that in the court's oral charge, and in written charge 9 given at the defendant's request, it is specifically stated that no recovery could be had unless the jury was reasonably satisfied from all the evidence that the defendant promised or agreed to repair the truck, and that plaintiff promised or agreed to accept such repair in full settlement of all claims that it might have had against the defendant.

If sustaining the plaintiff's demurrers to defendant's third special plea of contributory negligence was error, it was without injury to the defendant, for under defendant's first special plea, alleging a failure of the driver to stop, look, and listen before going on the track, all of the facts alleged in said third plea were provable. These facts were also available under defendant's second special plea, and this may also be said as to defendant's fourth plea.

The count of the complaint to which defendant's fifth and sixth pleas of contributory negligence were directed shows that plaintiff's truck was stalled on defendant's track, and these pleas fall to allege such facts as would show that plaintiff was guilty of contributory negligence, and a careful examination of the facts set out in the sixth special plea shows that they were provable under the general issue, and the vice of the sixth plea as one of contributory negligence was not cured by the allegation that the driver "negligently" failed to stop and "negligently" failed to permit the truck to cross the track.

While timely objection was made by the defendant to the question propounded to the witness Dahlgreen, no motion was made to exclude his answer, and the objection to the question will not place the trial court in error, where no motion was made to exclude the answer; and for this reason assignments of error 19 1/2 and 20 are not well taken.

It was competent for the engineer to testify as to the rate of speed at which the train and truck were traveling, the distance of the train and the truck from the crossing, and even as to whether they were traveling fast or slow, but not for him to do this, which was strictly within the province of the jury — determine whether or not, at the rate of speed the truck was traveling, it could have passed the crossing before the train reached there. This was for the jury to say.

The question propounded to the witness Martin as to the original estimate made on the damaged truck was objectionable, for the reason that the paper was the best evidence as to its contents.

Appellant's insistence that the general affirmative charge should have been given is based on the assumption that there was no proof that the defendant, Walker D. Hines, Director General of Railroads, had any connection with the occurrence complained of, and that the court could not take judicial notice of the fact that the Gulf, Mobile Northern Railroad had been taken over and was being operated by the Director General of Railroads. The court takes judicial notice that by public proclamation the railroads were taken over by the government under public proclamation issued by the Chief Executive, and that they are being operated, and were being operated, by the Director General of Railroads at the time of the alleged accident, and that said Walker D. Hines was Director General of Railroads. Muir v. L. N. R. R. (D.C.) 247 Fed. 888; Ex parte McMillan, 15 Ala. App. 571, 74 So. 396. The question of negligence was properly submitted to the jury, and the refusal of charges withdrawing from the jury this question were properly refused.

The refusal of the court to give several charges requested by appellant in writing is assigned as error; but it does not appear from the bill of exceptions that the request was made before the jury retired to make up their verdict, and it will therefore be presumed, in favor of the ruling of the trial court, that the charges, if otherwise good, were refused for this reason. Patterson v. State, 8 Ala. App. 420, 62 So. 1026; Empire Coal Co. v. Crevlee, 9 Ala. App. 657, 64 So. 207; Carter v. T. C. I. Co., 180 Ala. 369, 61 So. 65.

We find no reversible error in the trial of the cause, and it follows that the same must be affirmed.

Affirmed.