Louisville & N. R. R. v. Williams

SOMERVILLE, J.

— The complaint alleges that defendant’s servant in charge of its cars, while acting within his employment, willfully or wantonly ran said cars against or upon plaintiff, thereby proximately causing the injuries described. This sufficiently charges a willful or wanton injury, as uniformly held by this court.

A witness should not be allowed to state that another person does or’ does not know a particular fact, this being a mere conclusion, and ordinarily the allowance of such testimony, when properly objected to, is reversible error. — L. & N. R. R. Co. v. Perkins, 165 Ala. 471, 51 South. 870, 21, Ann. Cas. 1073, citing numerous cases. But where the witness has stated the facts upon which his conclusion is based, the allowance of his inference also does not necessarily require a reversal of the judgment. — Evans v. State, 120 Ala. 269, 25 South. 175. Plaintiff’s witness Snyder was asked if Conductor Smith had been in on the spur track before the day of the accident, and he answered: “Oh, yes; he knew how many people crossed there.” Defendant’s motion to exclude this answer on the ground that it was irrelevant and a conclusion of the witness was overruled. The question was proper, and the affirmative answer, “Oh yes,” was not subject to any objection. The additional and gratuitous statement of the witness was obnoxious to the rule above stated, but the objection to the entire answer was properly overruled. — Hill v. State, 146 Ala. 51, 41 South. 621.

But, if the witness was in a position to observe, he may be able to state that another person who was present sa w stated conditions or occurrences which were visible and open to ordinary observation. This is the statement of a collective fact which the witness may well know with certainty, and which is in accordance with common, every-day experience. — International, etc., Co. v. Anchonda, 33 Tex. Civ. App. 24, 75 S. W. 557; C. of G. Ry. Co. v. Hyatt, 151 Ala. 355, 43 South. 867. A cross-examination of the witness might have exposed the inadmissibility of his quasi conclusion, but this was not attempted.

In allowing several of plaintiff’s witnesses to state that Conductor Smith saw the location of the mills and track and lumber, and saw people going on and crossing the spur track, the trial court committed no error; though, the facts being admitted, such collective statements may also without error be excluded.

It was proper for plaintiff, under the conditions exhibited, to show that no one came or was sent in advance or at the front of the cars on this occasion; that it was the usual practice to do that when cars were shoved or drawn in on the spur; that it was not customary'to kick them in without”warning, or without some one stationed at the front end to give warning; that plaintiff had no warning of any sort that the cars were coming as they did; and that the defendant company had prosecuted its business of switching cars on the spur without objecting to the lumber company’s employees crossing the track as they were in the habit of doing.

It is to be observed that the situation here is altogether different from the ordinary case of persons crossing a railroad’s tracks upon its own right of way. The spur was on the private premises of the lumber company, and was presumptively its property. It was not a highway upon which the defendant ran scheduled trains, or upon which it might switch its rolling stock ad libitum. It was, on the contrary, used merely as a service track for the lumber plant, and for the accommodation of its business. Its employees were in no sense trespassers when they went upon it or across it, but were at least licensees equally with the employees and ears and engines of the railroad company. And, obviously, the latter had no right to presume, and, in the absence of some contract stipulation, no right to demand, that the track should be clear whenever it might be used or suddenly occupied by rolling stock.

These conditions justified the admission of the evidence above enumerated, and the court did not err therein. Nor was it improper to allow plaintiff to show that there was crossings at other points on the spur than the point of collision as illustrative of the general conditions surrounding the use of the track. The restrictions of proof in the case of public crossings are not applicable here.

The track ran in the midst of the lumber company's yard, and between and very near to its sawmill on one side and its planing mill on the other. Its employees had frequent occasion to cross this track in the prosecution of their work in and about its mills. According to some of the witnesses, some one was on the track continuously, and on an average of one every minute during the day. It was open to the jury to find from the frequency of Smith’s visits to the yard, and his opportunities to observe these conditions while they were existent, that he was acquainted with them, and had ample knowledge of the dangers to these employees attendant upon the heedless and unguarded operation of engines and cars in the midst of such an environment.

Unquestionably it was defendants duty, under these conditions, to exercise a very high degree of care and diligence to avoid injuring those persons who were rightfully upon the track, and whose presence there at all times it was bound to anticipate.

The vital questions therefore, are: (1) Did the defendant, through its servant, Conductor Smith, in charge of this train and these cars, omit any precaution for the safety of plaintiff, an employee rightfully on the track, which the circumstances justly demanded; (2) if so, was such omission, under the circumstances shown, an act of wanton negligence; and (3) was it the proximate cause of plaintiff’s injury?

1. Plying switches, it is generally held, are not per se negligent. — 33 Cyc. 953, and cases cited. But circumstances may stamp them as negligent, and in this case it was at least a question for the jury to determine. But whether negligent per se or not, “since such a practice is peculiarly dangerous, it creates a duty of unusual care on the part of the company; and there should be not only the usual signals of bell and whistle, but. there should also be a flagman near the track or a watchman on the nearest approaching car, as well as other reasonjably necessary precautions, [and] Where such acts are performed at a crossing in a populous town or city along which people are constantly accustomed to travel, it has been held to be negligence per se, although signals of alarm are given from the engine employed in the switching.” — 33 Cyc. 953b. In the present case the cars were “kicked” onto the spur by being pushed by a detached engine; the cars being then allowed to run on alone by the momentum given by the engine and by the force of gravity. This operation therefore falls within the principles that apply to the flying switch, and these principles are more vigorously applicable to a switch made upon private premises and in the midst of busy workmen.

Under the conditions here shown, the conductor’s omission, if so found, to send a flagman ahead of the train to warn the employees of the approach of the cars, or to station a lookout on the foremost car for that purpose, or to adopt some other suitable and efficient means of warning, must be regarded as negligence in law — this in view of tbe estimated speed of tbe cars, and of tbe obstructions to the view of those crossing the track, and the impossibility of their hearing the noise of approaching cars while the mills were in operation, conditions inherently dangerous, and a knowledge of which might be fairly imputed to defendant’s servant, Conductor 'Smith. —L. & N. R. R. Co. v. Davis, 91 Ala. 487, 8 South. 552. Some of plaintiff’s evidence tends to show that it was not customary to “kick” the cars onto the spur, and that when the trains went upon it a flagman was sent ahead or stationed on the front end- — a significant admission, if believed, of the requirements of the situation.

2. To the conditions above stated but one additional element is needed to render the omission of Conductor Smith to take the precautions suggested one of -wanton neglect, viz., conscious knowledge by him of the very frequent if not continuous presence upon the spur of some one or more of the lumber company’s employees, and of the likelihood that omission of these precautions would probably result injuriously to some one exposed to danger. Under the evidence these were jury questions, and it was fairly open to the jury to find Smith guilty of that reckless indifference to consequences which would constitute wanton wrong. — B’ham So. R. R. Co. v. Powell, 136 Ala. 232, 242, 33 South. 875. This conclusion does not seem to be seriously controverted by appellant, and is, indeed, scarcely open to question.

3. Defendant’s main contention, urged with much force and logic, is that, conceding the omission by Smith of all the precautionary duties suggested and demanded by the situation, yet as matter of law his negligence was not the proximate cause of plaintiff’s injury, and hence defendant was entitled to the general affirmative charge on the whole case.

Our consideration of this contention does not, however, persuade us of its validity. We do not feel justified in finding as a conclusion of law that, had a flagman been sent ahead of the cars, or had a brakeman been stationed on the end of the foremost car, plaintiff would not have been seasonably warned of coming danger; nor that, passing from the narrow passageway albeit almost immediately upon the track, plaintiff’s imminent catastrophe would not have been detected in time for a warning cry to reach him soon enough to avert or mitigate the tragic result.

Our conclusion is that the trial court did not err in refusing to give for defendant the general affirmative charge.

Several special charges requested by defendant were also refused. In the main these charges were framed upon the theory that this case is analogous to the cnse of injury to a trespasser at a public crossing or other point on a railroad highway — a theory which is entirely erroneous and untenable.

We notice these charges briefly:

Charge 9 is argumentative, and unduly emphasizes some phases of the case. It also invades the province of the jury in attempting to instruct them as an absolute conclusion, regardless of conditions, that shoving the cars on the spur was not evidence of negligence.

Charge 11 misapplies the rule of public crossings, which is not germane to this case. It was not necessary that the public should have customarily used or crossed this track, nor that defendant’s servant should have actually discovered plaintiff’s peril before his injury, in order to make defendant liable.

Charge 13 requires as a condition to defendant’s liability that the cars must have been shoved on the spur “at a high and rapid rate of speed.” Though some of the cases may have used this expression in respect to negligence at public crossings of railroads, or like places, it is plainly inappropriate here. “Speed” is a relative term, and a rate of speed which would be deemed “high and rapid” under some conditions would be deemed low and slow under others. It would have been highly misleading to have thus instructed the jury, under the conditions here shown. The speed that is reprehensible is a dangerous rate of speed under the circumstances. — A. G. S. R. R. Co. v. Guest, 144 Ala. 373, 381, 39 South. 654. A comparatively low rate of speed may have been highly dangerous here, and so may have been a legitimate predicate for the imputation of wantonness.

Charge 15 is erroneous, or at least misleading, in requiring a finding that all the agents or servants in charge of defendants cars had knowledge of the specified conditions and united in intentionally running the cars as charged. This is not the law. It was here sufficient if Smith alone had the knowledge and ran the cars recklessly. Moreover, charges 10 and 14 given for defendant substantially cover the principle invoked by this charge.

Charge 16 is erroneous in its designation of plaintiff as a trespasser on the track.

Charge 17 is erroneous in requiring that there should have been crossing of the spur by the public, and argumentative and misleading in requiring that such crossing should have been continual. The true requirement is that the crossing must be of such frequency and in such numbers as to inform and warn the carrier’s servant that some one is probably on the track at the particular time, and will probably be injured by running the cars at a dangerous speed without lookout and warning signals. — Ga. Pac. Ry. Co. v. Lee, 92 Ala. 271, 9 South. 230; M. & C. R. R. Co. v. Martin, 117 Ala. 367, 385, 23 South. 231; Southern Ry. Co. v. Stewart, 179 Ala. 304, 60 South. 927.

It follows that each of these several charges was properly refused.

There was a motion by defendant to set aside the verdict because contrary to the evidence, and also because, excessive in amount. The damages awarded to plaintiff by the verdict of the jury are heavy. In the trial court defendant unsuccessfully moved for a new trial on the ground that the verdict was excessive in amount, and the record presents that question for our consideration here.

The jury found that plaintiff was entitled to recover damages for a wanton injury. It was. their duty, therefore, to compensate him for that injury as nearly as possible, and in accordance with those standards by which an approximately just result is supposed to be reached. And it was within their discretion to further award to plaintiff such sum, not palpably unreasonable in view of the nature and circumstances of the wrong, as in their judgment would fitly punish the defendant corporation for the wanton act of its servant. It seems evident that they have exercised that discretion by the incorporation of punitive damages in their award.

The revision of such verdicts on the ground complained of has been a matter of frequent consideration by this court, and, indeed, by the appellate courts of all the states.

A statement of the grounds .upon which interference with such verdicts is justified on appeal in this state will be found in Central of Ga. Ry. v. White, 175 Ala. 90, 56 South. 574, together with a review of some of the cases. A very exhaustive and valuable collation and synopsis of the American cases will be found in the notes to Cleveland, etc., R. Co. v. Hadley, 170 Ind. 204, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A. (N. S.) 527, 16 Ann. Cas. 8; and Ruck v. Milwaukee Brewery Co., 148 Wis. 222, 134 N. W. 914, Ann. Cas. 1913A, 1361.

In other jurisdictions we find a number of cases, where the plaintiff has suffered the loss of both legs, in which verdicts of $25,000, $27,500, $30,000, and, in two cases, $35,000, have been sustained as not excessive. In some of these it appears that the plaintiff’s earning capacity was considerably greater than that of the plaintiff here; but, while that may be an important element, it cannot be regarded as a controlling factor in the amount of the verdict. — Gulf, etc., R. Co. v. Shelton, 30 Tex. Civ. App. 72, 69 S. W. 653; Id., 70 S. W. 359; Texas, etc., R. Co. v. Matkin (Tex. Civ. App.) 142 S. W. 604; Whitehead v. Wisconsin, etc., R. Co., 103 Minn. 13, 114 N. W. 254, 467; Yazoo, etc., R. Co. v. Wallace, 91 Miss. 492; 45 South. 857; Union Pac. R. Co. v. Connolly, 77 Neb. 254, 109 N. W. 368; St. Louis, etc., R. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375, 1199; Reeks v. Seattle Elec. Co., 54 Wash. 609, 104 Pac. 126.

For the loss of one leg only, a verdict for $25,000 was sustained in Ehrman v. Brooklyn City R. Co., 131 N. Y. 576, 30 N. E. 67; for $22,500, in Williamson v. Brooklyn Heights, 53 App. Div. 399, 65 N. Y. S. 1054; and for $20,000 in Texas, etc., R. Co. v. Brouillette, (Tex. Civ. App.) 130 S. W. 886.

These verdicts, it is freely conceded, do not illustrate the average conceptions of juries, as shown by the general run of the cases reviewed in the two notes referred to, and in the brief for appellant. But, as noted by the editor of Annotated Cases (16 Ann. Cas. 10), the tendency in recent years has been for verdicts to award, and appellate courts to sustain increasingly larger sums as compensation for personal injuries. This is attributable, no doubt, to the greatly decreased purchasing power of a dollar, as examplified in the rise in the price of nearly all commodities, and the enormous increase in the cost of living; and, in some measure, perhaps, to a higher regard for human life and the value of physical efficiency. It may be conceded that this verdict is in excess of our notions of what would be fit and just, having due regard to both compensation and punishment, and that some limit must be fixed somewhere to the expanding verdicts of juries in cases of this character. The question is in large measure, at least in its final analysis, an economic one, and its ultimate solution must pei’haps be found in the adoption of general compensation acts as the best remedy for the economic waste and ethical demoralization attendant upon the present system — -a policy which seems to be growing in favor among all enlightened people.

We have given very careful consideration to the case before us, and are unable to deduce, either from the circumstances of the case, or from a comparative study of other cass in this and other jurisdictions, the necessary conclusion that the verdict was the manifest result of passion, prejudice, corruption, or mistake, on the part of the jury.

Finding no prejudicial error in the record, the judgment will be affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Sayre, JJ., concur. Dowdell, C. J., does not concur in all that is said upon the subject of excessive verdicts.