Shannon v. Jefferson County

McCLELLAN, C. J. The court below committed no error in its rulings against the -admissibility of testimony as to the age, health, earning capacity, savings and domestic connections and relations of plaintiff’s intestate, nor in charging the jury that compensatory -damages are not recoverable in this action. — Richmond & Danville Railroad Co. v. Freeman, 97 Ala. 289. ■The following charges were also given for .the defendant: (1.) “If you (believe from the evidence that [389] tlie negligence complained of is so 'slight or so characterized by mitigating circumstances as that the jury would be justified in the imposition of such punishment only as is involved in the assessment' of merely nominal, damages, you may impose such damages, if you believe-from the evidence the plaintiff is entitled to a verdict.”' (2.) “In your sound discretion you may impose merely nominal damages if you believe that the death of. W. EL Shannon Avas caused by negligence so slight or so characterized by mitigating circumstances as that the jury AA’Ould be justified in the imposition of such punishment; only as is involved in the assessment of merely nominal, damages.” These charges are in substance excerpts; from the opinion in the case of R. & D. R. R. Co. v. Freeman, supra. They correctly state the law. It is clear,, however, from an examination of the bill of exceptions, that they are abstract. No evidence AVas offered tending: to show that the negligence imputed to the defendant was. slight in degree, or that it was “characterized by mitigating circumstances.” The charges should not have been given. But it does not folloAv that the judgment: should be reversed because they were given. To the-contrary, it has been the settled rule in this State for many years, repeatedly reaffirmed by this court, that: the giving of an abstract instruction is not an error Avhich will operate a reversal unless it is apparent that the jury Avere thereby misled to the prejudice of the party excepting. We are far from being able to affirm that it is apparent on the record before us that the jury were misled to the prejudice of the plaintiff by these, instructions. The record goes rather in affirmative support of the contrary Anew, that they were not misled by these charges. They did not. return a verdict for nominal damages as they Avere told they might do upon the hypothesis stated, but in fact did return -a verdict for one thousand dollars, evincing that they had not been misled by the instructions to the conclusion that the negligence shown Avas so slight or so characterized hv mitigating circustances that nominal damages would be commensurate punishment. [390] On the appeal of Jefferson county but one question is presented, viz.: Whether a county can he held liable under section 27 of the Code in connection with section 2512, in damages for death caused by a defective bridge. Under the latter section the rule of county liability is the general rule, and its exemption from such liability when guaranty of safety has been taken from the contractor and is of force is the exception to that rule. The liability is put by this statute on the county, not because it has not taken such guaranty, but because of tbe defective condition of the bridge. This condition in the exceptional case where a guaranty lias been taken is the fault of the contractor giving the guaranty, upon whom, as guarantor, the law imposes the duty of keeping the structure in repair. But when no guaranty has been taken, or the time of guaranty has expired, the defects of the bridge are chargeable to the wrongful act, omission or negligence of the servants or agents of the county upon whom the duty to keep it in safe condition for travelers is imposed, and hence upon the county. A county is a corporation and so fills that term of section 27 of the Code. The intestate of the present plaintiff could have maintained an action against the county for the wrongful act, omission or negligence resulting in the defective condition of the bridge which caused his death, had the injuries failed to produce death; aud such was the law before the enactment of section 27. So that it is plain that the death of this intestate and the right of his personal representative to sue therefor are within the letter of that section. No reason occurs to us for holding that the case here presented is not also within the spirit and purposes of this statute. And we feel that we are adhering to a general rule of decision as exemplified in respect of other statutes applying to counties, statutes of limitation, and statutes as to costs, for instances, in holding as we do that when on the facts a cause of action would have arisen in favor of an injured person under section 2512 against the county, it survives to his personal representative under section 27 when the injuries are mortal. [391] It follows tliat tlie judgment of the city court must he affirmed,on each of the appeals.