Louisville & Nashville R. R. v. Perkins

ANDERSON, J. The 6th count charges the wrongful ejection of plaintiff’s intestate from a moving train while on an embankment and avers his consequent injury and death, and is a. good count for the wrongful ejection, which is the foundation of the. action. And, as the count does not charge the defendant with inflicting the injury, it was not necessary to aver a consciousness of the result of said wrongful ejection. The demurrer proceeds upon the theory that the count avers the wanton and willful infliction of the injury, and is inapt, as [330] the count relies, on the wrongful ejection of plaintiff’s intestate. The demurrer was properry overruled. Lampkin v. L. & N. R. R. Co., 106 Ala. 287. The trial court did not err in refusing charge 1, which was the general affirmative charge for the defendant, and which said charge was so thoroughly unwarranted by the evidence that comments are unnecessary. Charge 4 was properly refused. It is true the witness, Williams, testified that Tom Ellis was working in his place the afternoon he was off, and when he claimed to have seen the old man ejected from the train. But there was other evidence that Williams did not work at the mill that afternoon and that the planer was run by George Ellis, a brother, instead of Tom. The witness could have been mistaken as to which of the Ellis boys was working for him, and the jury could have easily believed that Williams did not work at the mill that afternoon and that George, instead of Tom, took his place. Charge 8 was properly refused. If not otherwise faulty, it required the jury to find for the defendant, unless Cargill the conductor threw the intestate off the train. There was nothing in the evidence to- show that the ejection was by the conductor alone. Charge 16 was properly refused. Charge 21 was properly .refused. If faulty for no other reason, the failure of the witness to render aid or assistance to the old man did not authorize and require the jury to reject his testimony entirely. Charge A was properly refused. It called upon the court to single out the testimony of Williams, and confined the jury to a consideration of a part of the testimony, when, in making up a verdict, they should consider it all together. — L. & N. R. Co. v. Rice, 101 Ala. 676; Ross v. Ross, 20 Ala. 105; Ralston v. Langdon, 26 Ala. 664; 11 Ency. Pl. & Pr., § 4, p. 141; Cook v. Thompson, 109 Ala. 523; Miller v. State, 110 Ala. 87; Murphy v. State, 108 Ala. 13; Blashfield on Instructions to Juries, p. 558. This charge practically required the jury to believe all of t:he evidence of Williams in order to find for the plaintiff, when as a fact they could have disbelieved some parts of his testimony and believed other parts, [331] and. it was not necessary to have believed all of his evidence in order to have found a verdict for the plaintiff. The cases relied upon by counsel for appellant, Hart v. Bray, 50 Ala. 446 and Garrett v. Garrett, 27 Ala. 687, are not authorities that would put the trial court in error for refusing to give this charge. They simply hold that the trial court will not be reversed for giving a similar charge, when the evidence of the witness aimed a,t determines the merits of the case. They do not hold that it would be reversible error to refuse such a charges, but rather excuses the judge for giving it. Charge B was also properly refused. It is true that the witness Williams was contradicted by the trainmen, the parties charged 'with committing the deed, and the act of throwing the old man off the train seems so inhuman and cruel as to be unreasonable, yet unreasonable things are often done and crimes frequently committed; the courts are not authorized to disturb the finding of a jury because the act was inhuman and because the defendant’s witnesses outnumbered the plaintiff’s. The old man was found disabled near the track, some distance beyond his destination on that line, and it is just as reasonable to.believe that the train was slowed up and he was put off when the conductor in going through discovered that he had been carried beyond Georgiana, as it is to believe that he jumped or fell off the train or that he wandered up the track after getting off at Georgiana and got in the water of his own accord, especially in view of the fact that there Avas not the slightest evidence to show that he got off or was put off the train at Georgiana, notwithstanding the train arrived there in broad daylight. The record discloses the fact that the evidence Avas considered twice by separate juries and each time there was a verdict for the plaintiff, and this court does not feel authorized to pronounce the finding so contrary to the evidence as to render the verdict wrong or unjust. There was no error committed by the trial court of which the defendant can complain. Affirmed. McClellan, C. J., Tyson and Simpson, JJ., concurring.