Seaboard Air Line Railway Co. v. Taylor

WALKEB, P. J. — This was an action by the appellee to recover damages for injuries to his person and property resulting from a collision in a street in the city of Birmingham between a delivery wagon, which he was driving, and an engine of the defendant, which was being operated across the street. In the several counts of the complaint upon which the case went to the jury [630] the injuries complained of were attributed, respectively, to the simple negligence, charged in general terms, of the defendants servants, agents, or employees.in charge of the engine in causing the collision, to their willfully, wantonly, or intentionally doing so, and to the violation of certain municipal ordinances, which were set out, regulating the speed of trains within the city, and requiring in stated circumstances, the use of certain signals and headlights, the flagging of trains, and the keeping of watchmen or flagmen. The criticism directed in argument against written charges 1 and 2, given at the request of the plaintiff, is based upon their use of the word “authorized,” the contention being that that word as it was there used imported such a direction or command to the jury as to what they should do in the event stated as to deprive them of the right or discretion to do otherwise. Neither of the charges is fairly subject to such a criticism. Such a statement to the jury as to what they are “authorized” to do in the event of their finding from the evidence the existence of the hypothesized state of facts is an appropriate way of informing them of the extent of their authority or legal power in such event, and does not suggest or indicate that they are bound to go to the limit of their power or authority, or that they are required to reject any testimony which they find to he credible. — Kress, et al. v. Lawrence, 158 Ala. 652, 47 South. 574; Louisville & Nashville R. Co. v. Seale, 160 Ala. 584, 49 South. 323. Count 7 of the complaint as it was amended averred that the described collision complained of occurred at a crossing in the city of Birmingham at which, under the terms of a city ordinance, which was set out, it was the duty of all persons having charge of locomotives, cars, or trains to bring the same to a full stop before crossing, and when any such locomotive, car, or train [631] •approaching snch place has been stopped, as required, it •shall not be moved forward on or over such crossing until signaled to go forward by a watchman at such •crossing. Following these averments were others to the effect that the injury and damage complained of were proximately caused by the negligence of the defendant’s servants, agents, or employees who were in ■charge of said train, and while acting within the line and scope of their employment, in this: “That said defendant’s servants, agents, or employees negligently •and in violation of section 651 of the City Code of Birmingham, Ala., did negligently cause said train to be moved forward on and across said Eighteenth street without its having been signaled to. go forward by a watchman at such Eighteenth street.” This count plainly specifies, as the actionable negligence for which a recovery is sought, the alleged violation of the provision contained in the municipal ordinance mentioned. It is not a count which charges negligence in general terms. It specifies the particular act or omission which is relied on as the basis of a recovery. Plainly nothing ■other than the alleged violation of the ordinance is counted on. This, and nothing else, is set up as constituting the negligence complained of. In order for the negligence counted on to be shown, it was requisite to prove the existence of the alleged ordinance. — Adler v. Martin, 178 Ala., 59 South. 597. In the absence of •such proof the defendant is not shown to have been under the special duty for a breach of which the count in question seeks to charge it with liability. No such evidence was offered. In this situation the defendant was ■entitled to require the court.to give written charge 7, requested by it. The effect of the refusal to give that charge was to leave before the jury for its consideration a count a material averment of which was unsupported by evidence. The record furnishes no data which would [632] enable the court to refer the general verdict rendered to some other count or counts of the complaint rather than to this one upon which a verdict could not properly have been based because of the lack of evidence requisite to support its averments. ■ It follows that the refusal to give the charge mentioned was prejudicial error. We do not find any reversible error in other rulings of which complaint is made. The questions presented are not such as to call for a discussion of them. Reversed and remanded.