Kansas City, Memphis & Birmingham R. R. v. Thornhill

McCLELLAN, C. J. The assignments of demurrer to the first count'of the complaint do not go to the deficiency of its averments in respect of McAbee’s dominance of the plaintiff in the service of the defendant. Jt does appear by the count- that McAbee was the foret-m-an and that plaintiff was under him, and that this relation between them existed in the service of the defendant, and, further that plaintiff was bound to obey the alleged negligent order of McAbee. If it were supposed that the count should have alleged McAbee’s particular foremanship, the scope of it, and plaintiff’s relation to such foremanship, or that the count should have averred that plaintiff was “bound to conform and did conform to” McAbee’s orders, the demurrer should have pointed out these defects. We are not of opinion that the averments of count, 1 show either that Thornhill, the plaintiff, assumed the risk incident, to attempted obedience of McAbee’s order1, whereby he was injured, or that he was guilty of negligence, contributing to- his injury, in attempting to obey the order. The first proposition, that he did not assume such risk, is satisfactorily supported by the reasoning and authority of the case of Scliroeder v. Chicago & Alton Railroad Co., (Mo.) 18 L. R. A. 827. Upon the other question, viz., whether1 the count shows contributory negligence on Thornhill’s part, several considerations are pertinent. In the first place, the act of McAbee in giving the order and the attempt of Thorn-hill to- obey it, are not to be judged in respect of negligence vel non• by the same standards. McAbee had more time and better opportunity to- consider whether he would or should .give the order than Thornhill had after it was given to- determine whether he would enter upon its execution. Then, too, though the danger of attempting to obey the order may be conceded to be shown by the count- to have been apparent to Thornhill as well as to McAbee, it cannot be said as matter of law to have been so obvious and imminent upon the facts averred as that no prudent man would have made the. attempt, according, even in the face of such danger, something to — 229 — Thornhill’s duty and ha,hit of obedience; something to the lack of time for him to consider the situation and to determine his action advisedly, especially as this sudden emergency was itself the product of McAbee’s negligence; something to his probable and not unreasonable asumption that McAbee would seasonably warn him from the attempt, and yet something more to his probable belief that the removal of the car from the track was necessary for the "safety of the trainmen — a consideration which might justify his making and persisting in the attempt to any extent short of rashness, buL which, we apprehend, would not avail to acquit McAbee of negligence in giving the order, for whether such extreme risk should be taken to' save human life, would seem to he a question personal to the man who is to take or to avoid it. On these considerations .we are come to the conclusion that the first count does not show that the plaintiff was guilty of contributory negligence barring a recovery. — Louisville & Nashville Railroad Co. v. Orr, 121 Ala. 489, 500; Southern Ry. Co. v. Guyton, 122 Ala. 231; Roll v. Northern Central Ry. Co., 15 Hun. 496; Schroeder v. C. & A. R. R. Co., 18 L. R. A. 827 ; Stephens v. H. & St. J. R. R. Co., 96 Mo., 207. Some of the foregoing considerations apply with like force and effect, to count B, and lead to the same conclusion, that that count is not open to the objection that it showed contributory negligence by plaintiff. We attach no importance to the use of the word “recklessly” in conjunction Avitli the Avord “negligently,” in characterizing McAbae’s order, in the. first count, nor to the omission of that word from count B. It would no more follOAV on the facts averred that Thornhill was reckless because of the averment that McAbee was reckless than that the former Avas negligent because it is averred that the latter Avas negligent. The use of the two Avords may, indeed, be taken to mean only negligence. — Kansas City, Memphis & Birmingham Railroad Co. v. Crocker, 95 Ala. 433. We haAre stated our opinion, and the grounds of it, to the effect that plaintiff was not necessarily guilty of negligence in his attempt to remove the hand car — 230 — for that he knew the train was near and approaching, and this con elusion covers also the action of the court in sustaining the demurrer to the 2d plea. Plea 4 presents a false issue, in a sense. It was not a question whether the train could be stopped before it reached the point where the hand car was: there was no pretence -that it could; hut the question was whether there was such probability or possibility of removing the hand car from the track before the train reached that point as justified the attempt to remove it. For the rest, what is said of plea 2 applies also to this plea, and to piea 5. Pleas 2 and 5 as amended, and plea 3 which the court held good, fully presented the defense of contributory negligence in Thornhill’s undertaking to remove the-hand-car, and, therefore, defendant was not prejudiced by the disallowance of its proposed amendment of plea 4, which would have converted that plea also into one of contributory negligence. Moreover, the proposed amendment -would have rendered the plea bad for duplicity, had it been otherwise a good plea: as amended it would have set up both assumption of risk and contributory negligence; and furthermore the amendment was properly disallowed, all other considerations aside, under section 33 of the act “To establish the Walker County Law and Equity Court.” Acts, 1900-1901, p. 121. On the evidence adduced at the trial, Thornhill was not in a position of peril to himself when he received the order to remove the hand car from the track and determined upon attempting to execute that order. That order was given after the hand car had been stopped and after Thornhill along with the other members of the crew had got off of it, and when he and they were standing on or near the track about the car. In this position, he had merely to step aside to avoid all danger from the approaching train. The‘train was then one hundred and fifty yards away, affording ample time for him to get entirely out of all danger from it. That he could do so was perfectly obvious to- the perceptions and comprehension of any man in his senses. He was not hurt in consequence of being at that time in that position, but — 231 — in consequence of going and remaining on the track in an effort to remove the car therefrom. He was not hurt in an effort to extricate himself from peril, but in an effort to conserve the safety of defendant’s property and trainmen. He was not. put to a, sudden choice of means, harried and confused the while by a sense of his own peril, to save himself; but only to’ a sudden decision whether he would incur the risk of attempting to obey McAbee’s order, or would avoid all risks by disobeying it. He had escaped all the danger to himself growing out of McAbee’s negligence in running the hand car’ on the time of an approaching train going in the opposite direction without safe guard against collision, and was in a place of safety in respect of such threatened collision. From this eoigne of vantage, he entered upon a course involving a new risk — not the risk of the running car with him on it colliding with the train, but the risk of removing the car after he had gotten clear of it. The “doctrine fully approved by this court to the general effect that where the party injured was suddenly .placed by the wrong of the defendant in a position of extreme and imminent peril necessitating to his extrication quick decision and action on his part, he .will not be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situationi and to choose the best means of escaping the peril; or, in other words, * '* * * where by the negligence of the defendant, or those for whom he is responsible, the plaintiff has been suddenly placed in a position of extreme peril, and thereupon does an act which under the circumstances known to him he might reasonably think proper, but which those who have a knowledge of all the facts, and time to consider them, were able to see was not in fact the best, the defendant cannot insist that under, the circumstances the plaintiff has been guilty of negligence,” (Woodward Iron Co. v. Andrews, 114 Ala. 243), does not apply to- the facts of this case. To the contrary, but for considerations to be presently adverted to, the principles declared in Central of Georgia Ry. Co. v. Foshee, 125 Ala. 199, 215, 216, would apply to the case at bar. It was there said: “The intestate when she started — 232 — upon the act [crossing the track in front of an approaching train] which cost her her life, was not in a position of peril, extreme or otherwise. She was, to the contrary, in an absolutely safe position. And not only was it safe in point of fact, but it was obviously so to the perception and cornprehenson of any ordinary man. Any ordinary man or woman standing as she was by the side of the track and out of Uie way of the approaching locomotive wlien she saw tlm train * * * * Avould have known that that was a place o>f safety and would have had no hesitation or doubt as to the propriety of remaining there. * * * * * * * * * As no man of ordinary care and prudence would have attempted to rush from a place of safety across the track in front of this locomotive, the act must be held negligent- and rash on the part of the intestate. It is of no consequence that she was panic stricken and hence thought she was in danger and that that was her only means of escape. She must have been in danger • — which site was not — and she must have reasonably thought the course she took was the best — which she could not have done since there was no ground for so thinking. The plaintiff can not hold the defendant responsible for the results of her unwarranted panic.” The considerations which prevent the application of the doe trine of the Foshee case to the case at bar, and which yet do not pi*evail to bring it within the Woodward Iron Co. v. Andrews case, are that Thornhill was ordered by his superior to remove the car, that he might reasonably have expected McAbee would warn him to desist from that effort in time to- escape injury; that defendant’s property and the lives of defendant’s trainmen were in danger; that it was his duty to conserve the safety of the trainmen and of the property if the car could be removed with safety to himself; that to save the trainmen from the dangers of a collision and the possibly consequent derailment and wreck of their train he was justified in taking extra, hazards, and that he had to determine upon the instant whether he would enter upon the execution of the order. These considerations made the question of his negligence vel non in going from a safe postion into the dangerous one where he received his1 injuries one for — 233 — the jury’s determination, one upon which the court could not give the affirmative charge for the defendant, as this court held should have been given in the Foshee-oase, and therein lies the difference between the two cases: But, as we have said, these considerations do not avail to make a case Avithin the doctrine of Woodward Iron Co. v. Andrews. There Avas danger here, hut it Avas not danger to the life or limb of Thornhill. He Avas not put suddenly, by defendant’s fault or otherivise, to decision and action to his OAvn extrication from peril, because he Avas in no peril. But there was suddenness of danger to property and to the lives of others. There were calls upon him to avert that danger. To avert it immediate decision Avhether he Avould respond to these calls, and immediate action, if any action could avail, was necessary. All these circumstances were for the jury’s consideration in arriving ait. a conclusion Avhether he Avas guilty of negligence. But, Ave repeat, none of them, nor all of them combined, nor anything other in the evidence, presents a case for the application of the principle that one placed by the fault of another in a position of extreme and imminent peril, and under necessity to instantly choose his course and act, cannot be held- to the same correctness of decision and action as one Avho knoAvs all the facts and has time to consider them un-liarried by his oavu peril. And yeti it Avas this principle, couched in the language of its formulation in the Andrews and Foshee cases, that the court gave in charge to the jury as that upon Avhich the issue of contributory negligence presented by the pleas to count 1 Avas determinable, and afterAvards refused an instruction requested by the defendant that “the principle of laAv the court in its oral charge to the jury referred to as- to one being placed in sudden peril by the negligence of the defendant, or of those for Avliose acts the defendant is respon-sibe had no- application to the first count of the complaint.” The court should not have so instructed the jury in its oral charge. But having done so, it should have corrected itself by giving this charge requested by the defendant. Its refusal Avas error. — 234 — The affirmative charges requested by the defendant as to .counts 1 and B — all.other counts going out by demurrer or charges— (among which may. be reckoned many requests which were in effect, but not in form, general affirmative charges) which were asked on the theory that the evidence showed without conflict that the plaintiff was guilty of negligence proximately contributing to his injury, were properly refused on considerations already adverted to': it was a question for the jury whether a man of ordinary care and prudence would have attempted to remove the hand car from the rails under all the circumstances. , Assuming that the issue of negligence vel npn on the part of plaintiff in not desisting from the effort to remove the car in time to avoid being struck by the train was presented by the pleas of contributory negligence— as to which, quaere So. Ry. Co. v. Shelton, 136 Ala. 191 —the substance of the charge bearing on that issue, refused to defendant, Avas embodied in other instructions g'toen at defendant’s request. Charge N refused to defendant is somewhat confused in language. But apart from that consideration it was properly refused. It cannot be said as a matter of laAV that the failure of Thornhill to keep- an eye on the approaching train AAdiile he was attempting to remoA^e the hand car was negligence. The act he was upon Avas: of such exigent nature, necessitating such immediate action, that, having in mind the position of his. body with reference to the train, the jury might have concluded- that i t Avasl.not negligence in him to give his Avhole attention to the doing of it looking to McAbee for timely Avarning to desist. . In its general charge, given of its own motion, the court instructed the jury as to the measure of damages in these words only: ;“What the measure of damage's, if any,, is for you to- say; in this the court can give you no assistance.” To this the. defendant excepted at the conclusion of the charge, and thereupon, the .court said this more to the jury: “No-w, gentlemen of the jury, 1 desire to make a correction as to a part of the charge which I gave you as to the measure of damages. I said — 235 — that what, the measure of damages is, is for you to say; iiiat in that the court could give you no assistance. I will correct this by saying: I charge you that in fixing the amount of damages, if yqu find for the plaintiff, urn may lake into consideration the evidence as to physical pain, and injury, if any, to the health of the plaintiff, hut in no event must your verdict exceed the amount claimed in the complaint.” The original statement of the judge and his correction were both before the jury. Written into each other the instruction is this: “What the measure of damages, if. any, is for you to say. The court can assist you by saying that in fixing the amount of damage, if you find for the plaintiff, you may take into consideration the evidence as to physical pain and injury, if any, to the health of plaintiff, but in no event must the verdict exceed the amount claimed in the complaint.” The manifest tendency of this charge Avas to lead the j ury to conclude that the only limitation upon the amount of their verdict was the sum stated in the complaint, and that within that figure they were, free to find any amount regardless of all consideration of the damages actually sustained by the plaintiff. The jury should have been instructed to find from the evidence a sum which, in their judgment, would compensate the plaintiff for the injuries he suffered, not in excess of the amount claimed. Instead, they might well have concluded that they could return any amount their caprice might suggest, not beyond the complaint, without refei-ence to the evidence. The original instruction should not have been given, and it was not helped by the attempted correction. lteversed and remanded. Sharpe, J., concurs in the result, but does not agree that there is any impropriety in the charge with reference to the measure of damages.