Southern Ry. Co. v. Douglass

DOWDELL, J. The plaintiff, a minor, by next fried, J. B. Douglass, sues the Southern Bailway Company to recover damages for injuries received on account of negligence of defendant’s servants or agents in the operation of one of its trains. The complaint contained two counts, both of which were predicated on simple negligence. A demurrer was interposed by the defendant to the second count as amended, which was overruled by the court. The action of the court in overruling the demurrer is assigned as error, but this assignment'is not insisted on in argument. Moreover, the count- demurred to stated a good cause of action. No error was committed in overruling the demurrer. In both count® of the complaint the negligence of defendant’s servants in the operation of its train causing the injury, is averred in general terms. Under the state of the pleading, the plaintiff would not be confined in the introduction of his evidence to any one particular negligent act. The failure to ring the bell at the time of the accident was one of the issues involved. [358] The witness. J. C. Wood, examined on behalf of the plaintiff, testified on direct examination, that he was on the front part of the planing mill, and about forty feet from the railroad track, that he did not hear the whistle blow or the bell ring. It was drawn out on the cross-examination of this witness, by the defendant, that the witness “was busy at work grading lumber, inspecting lumber from the machine as it comes out;” that the planing mill was in operation, and that “there was a great deal of noise going on around” the witness. On redirect examination, plaintiff’s counsel asked witness the following question; “Prior to this time while the machinery was going, making the same noise it was on the day of the accident, and you were doing similar work had you ever heard the bell ringing?” The bill of exceptions recites; “To this question the defendant objected as illegal and incompetent.” The objection was overruled, to which ruling an exception was reserved, and the witness answered, “Yes sir, I heard it.” The theory of the cross-examination was to. show that on account of the noise of the plaining mill, etc., the bell might have been ringing at the time .and yet the witness not have heard it. The evidence sought to be elicited by the question objected to, was in rebuttal of this theory. The objection as made, whether referred to the question or to the evidence sought to be elicited, was general. Neither question, nor the evidence sought by it, was patently bad, The question hypothesized similar conditions, and if in this respect it did .not fully hypothesise the condition, the objection on that account should have been specific No objection was made to the answer of the witness This witness was. then asked by plaintiff’s counsel; Hoy long had the Southern road been running .trains of cars by that planing mill after it was erected there and in operation according to your knovdedge.” The bill of exceptions recites as follows; “Defendant objected to this question as immaterial,” which objection was by the court overruled, and the defendant excepted. The witness answered, “four years that I know of.” There was no objection made to the answer, or motion to exclude. At the stage of the trial at which this question was asked, it was competent for the plaintiff to show the locality [359] of tlie accident, the then existing conditions and surroundings tending to make the crossing of the track at that place by footmen more than ordinarily perilous from passing trains, and a knowledge of these conditions on the part of the defendant’s servants. To this end, the evidence sought to be elicited was material. If for any reason, either in the failure of the proof to show that the surroundings rendered the crossing more than ordinarily perilous, or by subsequent rulings of the court, the evidence becomes immaterial, the defendant could have asked to have the same excluded, and this it failed to do. There was no reversible error committed in overruling the objection on the ground as stated. For like reasons there was no error in overruling the objection to questions asked defendant’s witness, George Garrett by plaintiff on the cross-examination of said witness. On the conclusion of the evidence, and after the court had given several written charges at the instance of the plaintiff, the bill of exceptions recites as follows: “Thereupon the defendant requested the court to give the following written charges, numbered 2, 7, 9, 13, 15, 16, 17 and 18 in words and figures as follows,” setting out the charges, and at the conclusion states, “But the court refused to give each of said written charges, and and to the refusal of the court to give each of said written charges, the defendant then and there in open court duly, severally and separately excepted.” Under the authority of Verberg v. State, 137 Ala. 73, the defendant’s request of the court to give said written charges, “must •be construed as a request to give them in their entirety.” Yates v. State, at the present term. So construing the request, if any one of the charges was bad, there was. no error in refusing all of them. — Rarden v. Cunningham, 136 Ala. 263. Among these charges some were patently bad, but we need to call attention only to charge numbered 9. This charge was clearly an invasion of the province of the jury, as there was evidence which tended to show that the accident happened within the town of Riverside. The only charge given at the request of the plaintiff, that is insisted on in argument by appellant’s counsel as being erroneous, is charge numbered 1. This charge [360] with proper hypothesis, is predicated upon a failure of the defendant’s servants to comply with the statutory requirement as to the blowing of the whistle or ringing the bell while passing through the town of Riverside, and concludes as follows, “and the injury resulted from such failure to blow the whistle or ring the bell,” etc. While it is true that the negligence complained of must proximately cause the injury, still the charge in the omission of the word proximately after the word injury, is not thereby rendered vicious. There is no pretense whatever of any intervening cause between the alleged negligence and the resulting injury, which in the remotest degree even contributed to the injury. In this respect the evidence was without dispute. It was open to the defendant to ask an explanatory charge, if the instruction given called for such. The only other insistence in argument of error in the ■giving of this charge, is based on the idea that there was no evidence that the injury was inflicted within the town of Riverside. There was sufficient evidence to afford the inference that the accident occurred in the town, there is therefore, no merit in this contention. We have carefully considered the evidence, and under the rule laid down in the leading case of Cobb v. Malone, 92 Ala. 630, and which has been followed in other cases, we cannot say that the trial court committed error in overruling the motion for a new trial. We fail to find any reversible error in the record, and the judgment must be affirmed. Affirmed. McClellan, C. J., Haralson and Denson, JJ., concurring.