Birmingham Railway, Light & Power Co. v. Leach

PELHAM, J. — The appellee brought his suit in the trial court to recover damages of the appellant for personal injuries, and the case was submitted to the jury on the second count of the complaint alone, alleging willful, wanton, or intentional conduct on the part of the defendant, its servants or employees in charge of defendant’s street car in running the same against and injuring appellee, who was attempting to cross one of the streets in the city of Birmingham in the night time at or near the intersection of two public streets. The assignments of error are based on the court’s refusal to give certain charges requested in writing by the appellant, and overruling a motion for a new trial. The appellee insists in two briefs filed by counsel that no separate exception is shown to have been reserved to the refused charges, and that therefore the appellant is in no position to complain of the court’s action in refusing the charges. Under the statute séparate exceptions to written charges given or refused are presumed. —Code, § 3016; Choate v. Ala. Gt. So. R. R. Co., 170 Ala. 590, 54 South. 507; O’Connor v. Dickson, 112 Ala. 304, 311, 20 South. 413. Charges must be requested separately, and if requested in bulk the court cannot be put in error for refusing all if one of them is bad. — Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 South. 89; Jones v. State, 150 Ala. 54, 43 South. 179. The case relied upon by appellee (Town of Vernon v. Wedgeworth, 148 Ala. 490, 496, 42 South. 749, and the authorities cited there, which are also cited by appellee) is to the same effect, and these authorities do not hold, as contended by appellant, that the trial court — 551 — cannot be put in error for refusing charges unless an exception to each separate charge is shown, but only that if not requested separately the court will not be put in error if one of the charges is erroneous. The recitals in the bill of exceptions in this case clearly show that the charges were requested separately, and that each was separately considered and marked “refused” by the presiding judge (Ala. S. & W. Co. v. Griffin, 149 Ala. 423, 42 S. W. 1034), and there can be no question but that the action of the trial court in refusing each of these charges is properly presented to this court for review. (The reporter will set out in the statement of the case the caption immediately preceding the refused charges shown by the bill of exceptions on page 20 of the transcript.) The appellant insists that the evidence as shown by the bill of exceptions contains no proof that the defendant owned or operated the railroad, or the car that struck the plaintiff, or that the motorman was an employee of the defendant company. This'point does not seem to have been disputed on the trial, and the entire course of the trial and the charges requested by the defendant plainly show that the OAvnership and operation of the car by the defendant Avas not questioned or challenged in any Avay, but Avas treated throughout as matter over AA'liicli there Avas no controversy. The witness Stewart Avas asked about the equipment of the cars of the Birmingham Railway, Light & PoAver Company Avitli reference to the time of the injury, and the defendant’s counsel, among other objections, objected to the question on the ground that the condition of the particular car causing the injury Avas not shown to be lcnoAvn to the witness. The defendant requested charges in Avhich it referred to the car in question as the defendant’s car, and to the person operating the car as the — 552 — mot orman in charge of the car. In passing upon a similar objection in a comparatively recent case, and made by this same appellant, the Supreme Court, has said: “It occurs to us that the objection is too technical to be meritorious. The course of the trial, the questions proimunded by the defendant’s counsel, and the charges asked by the defendant, all indicate that the point now raised was not disputed. The ownership- and operation of the cars by the defendant company was not raised on the trial, but appears to have been unquestioned.” — B. R. L. & P. Co. v. Taylor, 152 Ala. 105, 109, 44 South. 580, 581. What was said in that case applies equally, and with as compelling force, to the instant case. There was sufficient evidence to submit to the jury the question of the plaintiff’s right to recover on the second count, alleging wanton, willful, or intentional injury. There was evidence that the plaintiff while attempting to cross a street in the city of Birmingham at a street crossing in a populous section of the city, where people frequently -crossed the street, was run against by a street car running at a rate of speed of about 29 miles an hour; that this injury occurred at night; that plaintiff did not see the car until it struck him; that there was a street light overhead near by the place where plaintiff was struck, which was giving a good light, and the car had a headlight that was burning, and an object could be seen on the track for a distance of half a block or more in front of the car; that the, track was straight for some distance (about two blocks) in the direction the car approached the place of striking the plaintiff, and the view unobstructed; that the car could have been stopped in 20 or 50 feet., but was not stopped after striking plaintiff until it had gone the distance of about half a block; that no signal — 553 — or warning was given before t-lie car struck the plaintiff, knocking him several feet from the track. There was no direct proof that the motorman was keeping a lookout, but this he is required to do by' law (Anniston Electric & Gas. Co. v. Elwell, 144 Ala. 317, 42 South. 45), and, it being at a populous crossing in a city where people were likely to be crossing, it must be presumed the motorman Avas conscious of the surroundings and conditions (L. & N. R. R. Co. v. Davener, 162 Ala. 660, 50 South. 276), and this inference or presumption is a proper matter to submit to- the jury to determine Avhetlier he did knoAV of sucli conditions (C. of G. Ry. Co. v. Partridge, 136 Ala. 587, 24 South. 927), and if he did know of them, and knew that his conduct in the running, operation, or management of the car Avould likely or probably result in injury, and through reckless indifference to consequences, or consciously and intentionally, oil his part, the injury Avas inflicted, it Avould be such an act as Avould entitle the plaintiff to recover under the second count of his complaint, alleging AA-anton, AAdllful, or intentional injury. Under the evidence in this case it Avas properly left to the jury to say Avhetlier the motorman did any act or omitted to do any act with reckless indifference or disregard of the natural or probable consequences with the consciousness from knoAvledge of existing circumstances and conditions that his conduct Avould probably .result in injury; and, if the jury arrived at such a conclusion, this Avould be Avantonness for Avhich the plaintiff could recover under the second count, alleging a wanton, willful, or intentional injury, even though the jury should also believe there Avas no intention to inflict the injury. — B. R. L. & P. Co. v. Landrum, 153 Ala. 192, 45 South. 198, 127 Am. St. Rep. 25; L. & N. R. R. Co. v. Anchors, 114 Ala. 492, 22 South. 279, 62 Am. St. Rep. — 554 — 116. See, also, the ease of B. R. L. & P. Co. v. Oldham, 141 Ala. 200, 37 South. 452, 3 Ann. Cas. 333, in which it was said, under somewhat similar facts to those presented in this case, that a recovery under the count alleging wanton, willful, or intentional negligence was properly submitted to the jury. The fourth charge requested by the defendant was properly refused. It could be construed to mean that no duty rested on the motorman to stop his car before crossing Twenty-Fourth street, even though he saw the plaintiff on the crossing and could have stopped the car in time to have prevented the injury, and knew that by not stopping he would strike and injure the plaintiff. The court cannot be put in error for refusing the charges requested by the defendant seeking to instruct the jury that the rate of speed at which the car was run did not constitute wanton negligence, or that it was but simple negligence. While probably these charges may have correctly stated abstract propositions of law, as applied to this case the charges were decidedly misleading, as it depended entirely upon the surrounding-conditions and attendant circumstances and what the jury believed from the evidence as to these matters whether this running at the rate of speed shown by the evidence was but simple negligence. If the jury believed from the conditions surrounding and causing the injury as shown by the evidence that there was a likelihood of peril to the plaintiff known to the motorman, and through reckless indifference to consequences he consciously and intentionally caused the car to run over the crossing at such a reckless rate of speed that it would be impossible or impracticable to prevent striking the plaintiff, this would amount to wantonness. — M. J. & K. C. R. R. Co. v. Smith, 153 Ala. 127, 45 South. 57, — 555 — 127 Am. St. Rep. 22. Running a car across a public thoroughfare at such a high rate of speed as that injury cannot be prevented after discovering the peril may constitute wanton negligence. — 4 Mayfield’s Dig. p. 300, § 93, and authorities there cited. No error can he imputed to the court in refusing charges having a misleading tendency, even though they assert a correct proposition of law. — Atlanta & Birmingham A. L. Ry. Co. v. Wheeler, 154 Ala. 530, 46 South. 262; So. Ry. Co. v. Hobbs, 151 Ala. 335, 43 South. 844. The court was not in error in overruling the defendant’s motion for a new trial, and, as no reversible error is presented by the assignments of- error, the case will he affirmed. Affirmed.