Seaboard Air Line Ry. Co. v. Emfinger

SAMFORD, J. [1] Appellee sued for injuries to his person, sustained by his being struck by a team of mules, which had been frightened by a locomotive operated by defendant across a public street in the city of Montgomery. The case was tried on one count, which alleged the business of the defendant, that one of its tracks ran across a highway, the presence of plaintiff on the highway near the crossing, and “then and there the defendant so negligently conducted its said business that by reason thereof and as a' proximate result and consequence thereof a team attached to' a vehicle in said highway, from which plaintiff had alighted, became frightened or unmanageable, and ran upon and collided with plaintiff, and plaintiff was thereby injured,” etc. This count was demurred to and the demurrers were overruled. The demurrer was properly overruled. As was said by Mr. Justice Sayre, in the case of Southern Ry. Co. v. Crawford, 164 Ala. 181, 51 South. 341: “It has become too well established by repeated decisions to need further discussion that, where the gravamen of the complaint is the alleged misfeasance or nonfeasance of another, it is not necessary to define the quo modo of the negligence; the reasonable theory being that the defendant is best informed as to the particulars of his own dereliction.” L. & N. R. Co. v. Marbury, 125 Ala. 237, 28 South. 438, 50 L. R. A. 620; Armstrong v. Montgomery Street Ry. Co., 123 Ala. 233, 26 South. 349. We do not understand that the rule in these cases has ever been changed, or that the cases of T. C. I. Co. v. Smith, 171 Ala. 251, 55 South. 170, Cahaba C. Co. v. Elliott, [267] 183 Ala. 298, 62 South. 808, and Woodward Iron Co. v. Marbut, 183 Ala. 310, 62 South. 804, are in conflict. [2] Assignments of error 2, 3, 6, and 18 do not constitute reversible error. Counsel for appellant have cited us to no authority sustaining their argument, and it. is a well-settled rule that the locus may be described, and indeed the jury should have a full description o£ the entire area embraced in the inquiry. It was not negligence for the defendant not to maintain gates at this crossing, and the court so instructed the jury. [3] Assignments of error 4 and 5: The witness Katz was testifying from a drawing showing the location of the track, the parties and the train, and it was a proper inquiry as to his proximity to the train as it passed. [4, 5] Charge No. 4, as requested by defendant, was properly refused. This charge ignores the rule in the ease of So. Ry. Co. v. Crawford, 164 Ala. 178, 50 South. 340. Besides, this charge is abstract There is no evidence that the engineer saw plaintiff’s team approaching the crossing. Charge No. 3 ignores the rule above referred to, and is abstract, there being no evidence that the plaintiff’s mules were not rea-, sonably gentle. [6, 7] Charge No. 5 was properly refused. This action was not based upon a collision at a crossing, but for frightening the mules before they entered on the crossing, under circumstances rendering the defendant guilty of negligence resulting in injury to plaintiff. The evidence is without conflict that the team of mules that were frightened and did the damage were under the direction of plaintiff, although being actually driven by his 15 year old son; that he stopped them 40 or 50 yards before getting to the crossing, and waited for the switch engine of defendant to get across, and out of the way; that he could not see and did not hear the approach of the other train, but as a precaution he walked at'the head of his team going towards the crossing; that the mules were gentle and had crossed there before; that when he had gotten in 15 or 20 feet of the crossing, he saw the train approaching, and when it got on the crossing, it began to blow; that he grabbed the mules and the injury occurred. We have carefully examined the cases of Central of Ga. Ry. Co. v. Barnett, 151 Ala. 407, 44 South. 392; Bason v. A. G. S. Ry. Co., 179 Ala. 302, 60 South. 922; Saxon v. Central of Ga. Ry. Co., 192 Ala. 434, 68 South. 313, and based upon those opinions, we hold that the doctrine of “Stop, look, and listen” applies in this case, but from the undisputed evidence, the plaintiff not only did this, but after he thought the danger was passed, as a precaution against unseen and unknown dangers, he preceded his team •towards the crossing. The charge is predicated on his failure to do just what the evidence shows that he did do, and therefore is abstract and calculated to mislead. [8] The general charge for defendant was properly refused. Under the facts as disclosed, this was a case properly submitted to the jury. For reasons already set out, charge No. 7, asked by the defendant was properly refused. [9] Appellant contends that the circuit court was in error in refusing charges 8 and D. These charges ignore the principles laid down in the case of Postal Tel. Co. v. Hulsey, 132 Ala. 444, 31 South. 527, and many other decisions of like tenor, and even under the principle as laid down in the Postal Tel. Co. Case, the charge must state the entire facts, or the charge is abstract. Charges B, C, and E are scarcely insisted on in argument. Be this as it may, from what has been said, it is apparent the court did not err in refusing to give either of them. The case was properly submitted to the jury, and from what has been said, it follows that the motion for a new trial was properly overruled. There is no error in the record, and the judgment is affirmed. Affirmed.