Savannah & Memphis Railroad v. Shearer

STONE, J. 1. Tbe following facts are undisputed : Tbe defendant, corporation, was backing its train, pushing passenger and box freight-cars ahead of the engine, so that no person on tbe engine could see ahead of tbe train ; there was no brakeman or other person on tbe boxes, or stationed elsewhere, to keep a lookout ahead; this was within the limits of the city of Opelika; and the plaintiff’s intestate, walking-on the track, in the direction the train was moving, was overtaken by the train, run over, and killed. Under the principles declared in the case of Tanner v. Louisville & Nashville Railroad Company, at this term, we hold this fixes the charge of negligence on the railroad company. — Balto. & O. R. R. Co. v. Daugherty, 36 Md. 366; Brown v. A. & St. Jo. R. R. Co. 50 Mo. 461, 467; C. B. & Q. R. R. Co. v. Triplett, 38 Ill. 483; Beisiegel v. N. Y. Cent. R. R. 34 N. Y. 622. 2. It is objected for appellant that the act “ To prevent homicides,” approved Feb. 5,1872, Pamph. Acts 83, relates only to homicides by natural persons, and does not authorize an action against a corporation. Sections 2297, • 2298, and 2300 of the Bevised Code, are reprints of sections 1938,1939 and 1941 of the Code of 1852. The act “To prevent homicides,” approved Feb. 21, 1860, Pamph. Acts 1859-60, page 42, had expressly repealed sections 1938-9 of the Code, and enacted in their stead the following : “ That in place of the sections of the Code hereby repealed, the following words be inserted, ‘ That, when the death of a person is unlawfully caused by another, the personal representative of the deceased may maintain an action against the latter at any time within two years thereafter, and may recover such sum as the jury deem just, and the amount so recovered, shall be distributed as personal property of an intestate is now distributed, and shall not be subject to the payment of the debts of the deceased. That the right of action hereby given shall survive against the personal representative of the person unlawfully causing the death as aforesaid.” This statute, it will be observed, while it repealed, in express terms, sections 1938-9 of the Code of 1852, left section 1941 unrepealed. It is thus shown that the act of 1860? copied above, was ex [679] pressly made applicable to homicides caused by the “wrongful act, omission, or culpable negligence of any officer or agent of any chartered company,” &c., as well as to deaths caused by natural persons. If the provisions of that statute had been carried into the Bevised Code as sections 2297-8, as they should have been, no one will question that they would have received such construction, and that the act “To prevent homicides,” approved Fed. 5,1872, would have been unnecessary, and would not have been enacted. — See Pamph. Acts 1871-2, page 83. But the author of the Bevised Code overlooked and omitted the act of Feb. 21,1860, and retained the repealed sections as 2297 (1938) and 2298 (1939). To remedy this oversight in the codifier, and to restore the statute thus omitted by him, the legislature, at the session of 1871-2, re-enacted the statute “ To prevent homicides,” with the same title, and, in all material respects, in language identical with that employed in the act of Feb. 21, 1860.— Pamph. Acts, 83. This statute repealed, by implication, sections 2297 (1938) and 2298 (1939) of the Bevised Code. It did not conflict with section 2300 (1941), and hence did not repeal it. That section still stands. Section 2300, Bevised Code, was evidently placed there, out of abundant caution, and to prevent misconstruction. It is relational and explanatory. It was not necessary; for “the word ‘person’ includes a corporation, as well as a natural person.” — Code of Alabama, § 1. The laborious authors of the Code of Alabama, in place of sections 2297-8 of the Bevised Code, have substituted the provisions of the act approved Feb. 5,1872, and numbered it section 2641. In this, they simply expressed what every one must admit, that the later statute, being repugnant, repealed those sections. But there was no repug-nancy between the later statute and section 2300, and it did not repeal that. They retained section 2300, and numbered it 2643. Being relational, it could relate to nothing except the preceding sections 2641-2, and they so placed it. In this they but carved out what we are convinced was the intention of the legislature. We hold, then, that the action authorized by the act of Feb. 6, 1872 — Code.of Ala. §2641— may be prosecuted against corporations which, by their employes or agents, offend its provisions. — Southwestern R. R. Co. v. Paulk, 24 Geo. 356; LaFarge v. Exch. Fire Ins. Co. 22 N. Y. 352; People v. Utica Ins. Co. 35 Johns. 358; Comp. 73. 3. What we have stated above, shows that the City Court, did not err in its rulings on the demurrers, or in the introduction of evidence. — See Govt. Street Railroad v. Hanlon, 53 Ala. 70. Neither did the court err in holding that want of care in plaintiff’s intestate, contributory to the injury con]- [680] plained of, was defensive matter, to be made out by defendant. — Ib. Charges two and three, given at the instance of plaintiff, are, possibly, a little too strong. Contributory negligence, when it exists, most generally springs out of the facts and circumstances which prove the injury. Hence, we can not say that, as matter of law, the onus of proving it rests on the defendant. It evidently rests on the defendant, unless the testimony which seeks to fix blame on the defendant, also inculpates the plaintiff. This, however, was a subject for an explanatory charge, if deemed material; and, as we think no injury resulted from it, it furnishes no ground of reversal. 4. The defendant asked several charges, which were refused. Charge three relates to positive and negative evidence. It was rightly refused, because it did not predicate that the witnesses should have equal means of knowledge, and be equally credible.- — Sharswood’s Starkie’s Ev. 867, in margin; Pool v. Devens, 80 Ala. 672. 5. Charge four fixes an erroneous measure of damages, and was rightly refused on that account, although in other respects it may have asserted correct legal principles. Lacerated feelings of surviving relations, and mere capacity of deceased to make money if permitted to live, do not constitute the measure of recovery under the act of Eeb. 5, 1872. Prevention of homicide is the purpose of the statute, and this it proposes to accomplish by such pecuniary mulct as the jury “ deem just.” The damages are punitive, and they are none the less so, in consequence of the direction the statute gives to the damages when recovered. They are assessed against the railroad “to prevent homicides.” The other charges asked áre in conflict with our views above, and were rightly refused. Judgment of the City Court affirmed,