Southern Ry. Co. v. Montgomery

THOMAS, Justice. The cause was submitted on motion to strike the bill of exceptions, and on the merits. The motion to strike the bill of exceptions has been examined and found to be without merit. The judgment was rendered October 12, 1932; bill of exceptions presented to the trial judge May 9, 1933, signed and allowed of record June 19, 1933; motion for a new trial of date of November 4, 1932, was successively and duly continued to later dates. It is then recited by the record, “On this the 4th day of February, 1933, came the parties by their attorneys, and upon their motion, It is ordered and adjudged by the court that this motion be and the same is hereby continued to February 11, 1933,” and, “On this the 11th day of February, 1933, came the parties by their attorneys, and plaintiff objects to hearing of motion on ground that court has no. jurisdiction on account of time in which court could hear motion expired at midnight, February 10, 1933; the objection of plaintiff is by the court heard and considered,” and “It is ordered and adjudged by the court that this motion be and the same is hereby overruled, and plaintiff excepts to court entering any order on motion, and defendant excepts to court overruling motion.” It is insisted by appellee that under the rule of Oberhaus v. State ex rel. McNamara, 173 Ala. 483, 497, 55 So. 898, 902, the life of the motion ceased to exist “at midnight of February 10, 1933, and was exclusive of February 11, 1933'.” The question there for decision was the meaning of - the Act of August 31,1909 (p. 305), and it was held that under the act the term of Oberhaus “as jury commissioner,” under the appointment made by Governor B. B. Comer, ran “till the first Monday after the second Tuesday in January, 1911.” Mr. Justice Somerville adverted to the definition of the word “till,” and observed that “The words ‘to,’ ‘till,’ and ‘until’ are synonymous, and are sometimes ambiguous *459 and equivocal in the particular connection in which they occur in provisions for a period of time for the performance of an act, and are therefore construed as exclusive or inclusive according as the subject-matter about which they are used may show the intention in using the words to have been the one or the other.” In McCord v. Lanier, Register, 207 Ala. 663, 93 So. 546, the meaning of a restraining order to desist from further efforts to collect certain costs “until the appeal in said cause shall have-been heard and determined” held excluded “all subsequently accruing time after date of final decision.” The case of Johnson v. State, 141 Ala. 7, 37 So. 421, 109 Am. St. Rep. 17, held that under the statute that term of court continued until a certain Saturday, and the day named was excluded from the term by force of the general rule of exclusion; a matter of legislative intent for decision. Standard Oil Co. v. City of Birmingham, 202 Ala. 97, 98, 79 So. 489. In Richardson v. State, 142 Ala. 12, 39 So. 12, the defendant was given “until January 5, 1905,” in which to have the bill of exceptions signed; held “The words ‘until January 5th’ excluded that day, and consequently the time for signing the bill of exceptions expired on the night of January 4th.” 16 A. L. R. 1097, note. In Montgomery Traction Co. v. Knabe, 158 Ala. 458, 48 So. 501, the question was the term of the city court under the Act of February 28, 1907 (Loc. Priv. & Sp. Laws, p. 300); held the term of court terminated on Saturday night, July 6, 1907; and “until” did embrace Saturday, thus' overruling the Johnson Case, supra. If the motion for a new trial, continued to February 11, 1933, for hearing, may not be heard on that day, but the use of the word to excluded the day named, the time for presentation of appellant’s bill of exceptions expired 90 days after October 11, 1932, and the bill so signed would be subject to the motion to strike. Sections 6433, 6434, Code; Stroup v. Alabama Power Co., 216 Ala. 290, 292, 113 So. 18. The motion to strike the bill of exceptions is to clear up any seeming conflict, if such exist, and invoke a decision of the meaning of the words, “to February 11, 1933,” in the last ordéf of the court; whether it gave the right of hearing on the day named. We hold that as to hearing the motion for a new trial', it was the intention of the court to extend the time to the named date, and-that it embraced the date of February 11, 1933, for the hearing. The motion for new trial was duly and properly heard on that date; and this motion to strike the bill of exceptions is overruled. The’.action was instituted under the homicide statute (section 5696, Code), and resulted in a judgment for the plaintiff. The question on the pleading was the overruling of appellant’s demurrer to count 4, added by way of amendment, declaring for subsequent negligence, and that ruling is assigned as error. However, there is no insistence thereof in argument under the rule that obtains. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158. Count 4, for subsequent negligence of the fireman and the engineer, was that on which trial was had and submission to the jury. The gravamen of that pleading is, that the negligence of Griffin, as the engineer, and Newman, as the fireman of the locomotive in question, and at the time .and place, “after becoming aware of the peril of said locomotive colliding with plaintiff’s intestate, and while acting within the line and scope of their employment, negligently failed to use all of the means at their command to avoid said locomotive colliding with said intestate, when by the use of said means said locomotive would have been prevented from colliding with said intestate, ánd intestate’s death would have been avoided.” For convenience we will try-, to follow the order of counsel’s discussion of the -assignments of error in considering the question? ,duly presented. Plaintiff’s witness Gáfrett, having, testified and cross-examined, was re-examined as follows: “Q. About that time of day, I will ask you whether or not people áre constantly traveling along there, in’ other words,'just continuously going by there,' going and coming, coming toward East Lake and going ffiom East Lake?” Defendants objected to the question on the ground that it calls for in'cóm'p'etént; irrelevant, immaterial, and illegal testimony, and -on the further ground that there was nd-’wan-ton count.- The objection being overruled-and exception reserved, thé witness"ánsweréd': “A. I would answer that ih this way:'- il alnieist makes it a nuisance to live there with so many automobiles going to‘ and from. “The witness testified further: There is- so much traffic it is'-mighty near a-nuisance'to make it a home and-live there. -I said T Jmew what an alarm signal was, and I never heard *460 any given on that occasion.” (Italics supplied.) It is tiie general and cardinal rule that on tlae admission of evidence it must have a just and reasonable inference or presumption in relation to a material fact involved in the issue on which the jury are to pass, to prove or disprove a material fact in issue. Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389; Karr v. State, 106 Ala. 1, 17 So. 328. Under the fourth count, defendant’s declaration for negligence after discovery of peril is predicated on actual knowledge of the peril and the failure to take due and available preventive action to avoid injury to plaintiff’s intestate. Emmett v. Alabama Great Southern R. Co., 226 Ala. 310, 146 So. 811; Central of Georgia Ry. Co. v. Bates, 225 Ala. 519, 521, 144 So. 9. The record fails to disclose that there was a motion to exclude the evidence of the witness Garrett which was the subject of objection by defendant and overruled by the court. It has not been held that under the General Acts of 1927, p. 636, there was no necessity for informing the court of what was expected to be shown by the witness when objection was sustained; or when overruled, that reversible error be the result. Notwithstanding the statute, this court said: “It is commonly ruled by the courts'that questions of error in the trial of causes are of judicial, not legislative, cognizance. But, conceding for the argument the competency of the act here in question, we note the fact that it undertakes to define error in the admission of evidence, but does not require the court to reverse judgments for error without injury or to presume facts in order to reach a conclusion of injury. We hold, therefore, that the authority of the cases cited last above still governs this court in the determination of questions raised in this fashion.” Flowers v. Graves, 220 Ala. 445, 446, 125 So. 659, 660. And in Morgan Hill Paving Co. v. Pratt City Sav. Bank, 220 Ala. 683, 685, 127 So. 500, 502, is the observation: “Without undertaking to define the scope and effect of such statute, we follow the above decision, and hold that it does not repeal the long-settled law of this state, essential to the administration of justice, that error will not be presumed; nor does it repeal the rules of practice, not mentioned therein, to the effect that probable injury must appear.” And in Berry v. Dannelly, 226 Ala. 151, 145 So. 663, 666, the observation is made, that the rule requiring the appellant “to show error and probable injury is not abrogated by the provisions of the Act of September 9, 1927, Acts 1927, page 636.” Ramage, Parks & Co. v. Folmar, County Treasurer, et al., 219 Ala. 142, 121 So. 504. And objection after answer held too late in Ledlow v. State, 221 Ala. 511, 129 So. 282. In King v. State, 24 Ala. App. 267, 134 So. 133, it was held that under the statute motion to exclude the answer was not necessary, after due objection that was overruled and exception taken. The statute and decisions were recently considered in Alaga Coach Line v. McCarroll, 227 Ala. 686, 151 So. 834, 836, 92 A. L. R. 470, where it was held that the statute “does not repeal the long-settled law of this state, essential to the administration of justice, that error will not be presumed; nor does it repeal the rules of practice, not mentioned therein, to the effect that probable injury must appear” ; and, further, that “the burden is on the appellant not only .to show error, but also to show- that he has probably been prejudiced by such error.” St. Louis-San Francisco R. Co. v. Kimbrell, 226 Ala. 114, 145 So. 433; United States Fidelity & Guaranty Co. v. Yeilding Bros. Co. Department Stores, 225 Ala. 307, 143 So. 176. The evidence of witnesses shows the' accident occurred near Grand avenue on the property of the railway company between the avenue and the depot platform. However, we do not see how this ruling of the trial court could have prejudiced the defendant, because the fireman testified that he was on the lookout for any one in dangerous proximity to the engine, saw the intestate from the fireman’s place on the engine as it was on the crossing, and witness constantly saw intestate until he was stricken, and advised the engineer when the injury occurred. That is, the question of proximity to such much-traveled street, and the noise of cars known to the defendant’s agents in charge, quickened such agents in charge of the engine to- a constant lookout at such time and place; and thát the fireman was so on the lookout is shown by his positive testimony to the effect that he was so advised, not only of a probability of danger at such time and place, but that they had actual knowledge of the position and movement of plaintiff’s intestate and knew that he was in dangerous proximity to the advancing engine. The engineer testified that on his side he was on the lookout; that “it was such a crossing that required our observation at that place. * * * I think this special time I was looking out.” *461 The fireman testified that he was at his post on the side of the engine at all times, and had actual observation and knowledge of intestate and his dangerous proximity to and including the moment of his injury; that he observed intestate) from the time he left Grand avenue, and did not see him give any indication that he knew of the approach of the train: that “he was walking at a pretty nice gait”; that “the line drawn indicates the way the man went when I saw him until he was struck. I was watching this crossing here as that is a dangerous crossing and, lots of times people come down there running pretty fast, and then after my engine had crossed and completely covered that crossing, 1 saw him wanting right from that position that is marked there. I had never seen him before that. That is the first place I saw him there. I had good eyes. We were coming down the track there at the rate of about ten or twelve miles an hour on this crossing. * * * The pilot beam went by this man. He walked into the cylinder head, turned into it. He took three or four steps going into the train.” (Italics supplied.). .Moreover, the witness Garrett testified that he did not hear the signals given as testified by the enginemen, and the evidence was competent, as it affected or impaired his ability to hear signals, if given. What we have said applies to the third assignment of error. We may further observe that the question to Johnson, of the same general tenor, did not refer to Grand avenue. The idea of Grand avenue was injected into the inquiry by the objection of defendant’s counsel. We have indicated that the place where intestate was killed was at the intersection of several streets or ways at the depot of defendant (not Grand avenue alone), and the tracks of the defendant are laid out at, over, or in the intersection of such ways and immediately beside the place where intestate was injured; the place of ingress and egress of its tracks by the public and this intestate. ' Such facts are shown by the testimony of the witnesses; also by photographs introduced in evidence, and maps. The time inquired about of the witnesses Garrett and .Johnson was the.hour of the day when the injury occurred; this is shown by the question, and its context shows such identity. The answer of the witness Johnson was to the effect that witness “couldn’t say about it.” We find no error to reverse under the second and third assignments of error. Assignment of error 14 sought a review of the giving of charge 38 for plaintiff. This charge was not subject to the criticism that it required premature action by the fireman as soon as he discovered the peril of intestate in the zone of danger. It was the duty of such agent in charge, aftér he discovered the peril arising out of the immediate facts, as and when the occasion demanded, to use all the means at hand promptly, known to prudent and skillful engineers, to avoid accident. The charge did not demand a more efficient act or discharge of duty on the part of the fireman. Such are our decisions. Johnson v. Louisville & N. R. Co., 227 Ala. 103, 148 So. 822; Louisville & Nashville Railroad Company v. Young, 153 Ala. 233, 236, 45 So. 238, 16 L. R. A. (N. S.) 301; Southern R. Co. v. Alsobrook, 223 Ala. 540, 137 So. 437; Thompson & Donohoo v. Mobile & O. R. Co., 211 Ala. 646, 101 So. 441. The charge does not assume, as matter of fact, that deceased was in a position of peril, hypothesizing as it does, if you are reasonably satisfied from the evidence the fireman discovered intestate in a slate of peril. The pertinent questions of fact were for the jury and so left by the charge. However, there appears from the evidence to be no dispute of the fact that intestate was in peril, and that fact was within the observation and knowledge of the fireman. Alabama Power Co. v. Hines, 207 Ala. 346, 92 So. 611. The disputed questions of fact of when and where intestate became imperiled, and when and where the fireman became so aware, were for and left to the decision of the jury. Kelly v. Hanwick, 228 Ala. 336, 153 So. 269. There was no error in giving charge 38 for plaintiff. The charge does not assert or assume that the fireman discovered deceased’s peril in time to take preventive measures; and limits the required action to such as was available to a skillful fireman in his position. The oral charge and several given charges stated these questions for the jury’s determination. Pages 19 and 20 of the record. Charge 35, declaring the degree of care required as to subsequent negligence — limiting recovery attributable to the failure of the fireman to do what a reasonably prudent man would have done — was contrary to the pronouncements made in the decisions. The duty in the premises was to do all in his power, to use all appliances at hand promptly, known to prudent and skillful engineers, to prevent injury. Johnson v. Louisville & N. Railroad Co., 227 Ala. 103, 112, 148 So. 822; Wetzel v. Birmingham Southern R. Co., 20.4 Ala. 619, 621, 87 So. 96; Brown & Blowers v. Central of Georgia R. Co., 197 Ala. 71, 72 So. 366; Louisville & Nashville Railroad Co. v. Abernathy, 192 Ala. 629, 639, 69 So. 57. There *462 was no error in the refusal of this charge requested by defendant, under the evidence. The last assignment presented by defendant’s counsel (assignment of error 40) was the action of the trial court in overruling the appellant’s motion for a new trial, which, in addition to the errors heretofore considered, invoked a decision as to (1) the preponderance of the evidence, and (2) the excessiveness of the verdict. The testimony of the fireman, Newman, Alline Wilson, Johnson, and Luquire showed that deceased approached the track with his back to the engine; that he did not turn his head in that direction, nor did he give any indication that he was aware of the approach of the train and his danger, proceeding as he was. The fireman saw him in time as the engine was leaving Grand avenue for the west and behind decedent; as he walked at an angle or degree toward the track on which the train proceeded; that he was coming at an angle' toward the track with his back turned to the engine. The evidence shows the approach of a freight train on the other track; that there was its noise, and no fact is shown to indicate to the fireman observing him that deceased was aware of the approach of the train from behind. The freight train was on a parallél track “making an awful noise.” This case falls within the influence of Illinois Cent. R. Co. v. Martin, 213 Ala. 617, 619, 105 So. 805, 807, saying: “Seeing him in a place of rapidly approaching danger requires that- a watch be kept on his movements'. If lié- has his back -to the train, seemingly unconscious of its approach, the first duty is to give warning. If other noise's drown the noise of the train, this duty is the more apparent. The statutory ringing Qf the bell while'passing through a town or .village may not be sufficient.in such case.” Snider v. Alabama Great Southern R. Co., 210 Ala. 119, 122, 97 So. 209. We are of opinion that the verdict was supported by- the weight of the evidence. The other ground of the motion for a new 'trial insisted upon is the excessiveness of the verdict; The conscious and negligent conduct of .the fireman after actuaL-knowledge overwhelmingly'supports the evidence; aside from the testimony of other witnesses, as we have' indicated, the photographs,' diagrams, and maps. The amount of damages in such a case is first submitted; to the sound discretion of the jury hearing all the evidence, then to the trial judge on the motion for a new trial and upon the evidence adduced upon the trial. Upon the appeal the decision of the jury and the trial court will not be set aside, unless the preponderance of the evidence is so decided as to clearly convince the court that it is wrong and unjust, and so excessive as to indicate passion, prejudice, partiality, or corruption on the part of the jury (see Hale v. San Bernardino Valley Traction Co., 156 Cal. 713, 106 P. 83, for general authorities; Nashville, Chattanooga & St. Louis Railway V. Crosby, 194 Ala. 338, 349, 70 So. 7; J. C. Byram & Co. v. Livingston, 225 Ala. 446, 143 So. 461; Central of Georgia Railway Co. v. White, 175 Ala. 60, 56 So. 574; Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447); or unless some other improper or controlling sentiment affected the jury, the rule in this jurisdiction is not to reverse. Louisville & N. R. Co. v. Robinson, 213 Ala. 522, 105 So. 874; Whitman’s Fifth Ave. Garage Co. v. Ricks, 211 Ala. 527, 101 So. 53. Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447, where the authorities are collected and reviewed, held: “In granting new trial for excessive or inadequate damages, court need not determine what wrongful influence resulted in gross miscarriage of justice. “It is duty of trial court to grant new trial for excessive or inadequate damages, where, after making all due allowances, verdict is clearly unjust.” We cannot say, under the rule, there was error in refusing the motion for a new trial. Affirmed. ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. Footnotes [1] <§=oFor other oases see same topic and KEY NUMBER in al] Key Number Digests and Indexes [2] @=?For other cases see same topic and KEY NUMBER ia all Key Number Digests aad Indexes