Naugher v. Louisville N. R. Co.

McCLELLAN, J. This is the second appeal of this cause, reversal having been the judgment here. L. & N. v. Naugher, 203 Ala. 557, 84 South. 262. The report on former appeal renders unnecessary any elaborate recital of the state of the pleadings, as well as the circumstances attending the death of plaintiff’s (appellant’s) intestate while in the employ of the defendant (appellee). It appears from the report' that on former appeal the court was not favored with brief for the plaintiff, then appellee; and the application for rehearing was stricken. Upon return of the cause to the trial court, plaintiff amended the complaint by the addition of counts A, B, G, and E. Count E appears in the report of this appeal. [1] Count C was held subject to the demurrer. There was no error in this ruling. The count does not aver that the operation in progress when intestate was injured was being carried on by an employee or employees acting within the line and scope of their employment. It does not name the culpable *517 employee, or allege that his name was unknown to the pleader. The count’s averments also leave in some uncertainty the prevalence, at the time of Naugher’s injury, of the “general custom” described in count C. The count may have other faults. On former appeal the major proposition decided was that Naugher’s death was proximately caused by his contributory negligence ; and it was on this ground that plaintiff was held not entitled to recover. It was also held that the defendant was due general affirmative instructions against a right to recover under counts 5, 1, 3, and 7; and it is possible other statements in the opinion evinced a like judgment as to other counts. On the present appeal the evidence is different. Indeed, two witnesses were examined on the last trial that were not examined on the former trial, and several witnesses that testified previously were not examined on the last trial. The defendant (appellee) offered no evidence in its turn, its view being alone presented through its answers to interrogatories propounded by the plaintiff to the defendant, under the statute, and introduced in evidence by the plaintiff. The result of the last trial was controlled by the court’s giving, at defendant’s request, the general affirmative charge for the defendant on the whole case. This was error. [2, 3] If the only counts in the case had been those ascribing Naugher’s injury to willful or wanton misconduct or omission on the part of Engineer McDermot, the general affirmative charge as given would have been justified. There was no evidence that Mc-Dermot willfully injured Naugher, or that he wantonly caused his injury. That character of aggravated wrong cannot be imputed unless there is .knowledge on the part of the person so charged of probability at least that his act will inflict injury or such reckless indifference -to the consequences of known relation between the act or omission' in question and the peril of the injured person as characterizes the conduct or omission as wanton. The evidence refers McDermot’s movement of his engine and the attached cars alone .to the signal given him; and nothing is shown to invite, much less to justify, the conclusion that McDermot’s duty was to refuse heed or obedience to the signal in response to which he moved the engine and ears; and this is true even though it might be said that the customary use, by very numerous employees, of the narrow passage between this “cut” of just completed cars was known to McDermot. The conduct of the employee whose duty it was to direct the engineer to move these cars or to put that order in process of relayed communication to the engineer, and who did so, without adequate, customary warning of the movement ho was directing, when he knew of the frequent, common use of the mentioned passage by many employees during every day, may have been guilty of a wanton wrong, imputable to the employer; but not so with reference to McDermot. [4] Count E — a wanton count — presented that phase of the culpability just stated, which was expressed in the failure of the signalman to give such seasonable warning of the intended movement of the cars as a reasonably prudent man, likewise circumstanced and advised, would have given to effect the exclusion of the danger that might result from the unannounced movement of these cars. The evidence required the submission to the jury of the issues tendered by the material averments of count E. The general affirmative charge given erroneously deprived the plaintiff of her right to have the issues of count E considered. This ruling will serve as a sufficient direction with respect to such other counts in the complaint, charging simple negligence only, as fall within the same category, viz. the breach of duty in signaling the movement of the cars when reasonable prudence, under known circumstances of immediate danger if the movement was made without proper warning, would have suggested such precautions as the situation, including the stated use of the passage, required. Whether there was in fact such customary use of the passage by employees; whether it was so general and so long observed as to afford evidence of knowledge of it on the part of the signalman ; whether the signalman in fact exercised reasonable care and prudence in giving seasonable, adequate warning of the intended movement of the cars — were all issues due to be submitted to the jury. [5] Under the evidence in the present record the court could not soundly declare, as a matter of law, that Naugher was guilty of contributory negligence, barring plaintiff’s right to recover. The rule of duty “to stop, look and listen” does not apply to employees in 'such shop employment as Naugher was engaged in when injured. Ala. T. & N. R. Co. v. Huggins, 203 Ala. 80, 87 South. 546, 549, citing earlier decisions. [6] Given the establishment by the evidence, if so, of a practice to warn employees before moving ears on this construction track, between which employees passed as indicated, and such general observance of the stated practice as to justify the inference that Naugher knew of the practice, on this occasion Naugher had a right to assume, unless otherwise advised by the surroundings, that the cars would not be moved without the customary warning. Northern Ala. Ry. Co. v. Key, 150 Ala. 641, 43 South. 794. The judgment is laid in error. It is reversed, and the cause is remanded. Reversed and remanded. ANDERSON, C. X, and SOMERVILLE and THOMAS, JJ., concur.