Birmingham Railway Light & Power Co. v. Wright

McCLELLAN, J. — The practice of charging negligence, in cases of this character, in very general terms, has been too long sanctioned and approved by this court to now admit of consideration with a view to a change. It is settled. The complaint contains three counts, and their common averments state a relation of carrier and passenger just before and at the time of the injury complained of. With the exception of the second count, to which we will refer, simple negligence only is charged; and under the practice above restated we. must hold the first and third counts to state causes of action in case, and not subject to the demurrers interposed. The third count ascribes the injury to the defendant’s negligently moving or running said car while plaintiff was in the act of alighting, and, therefore, avers the proximate cause to be the consequential, as distinguished from the [105] intentional, result of the misconduct charged. — City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389. The second count, in the respect here important, before amendment was thus written: “That it was the duty of said .defendant then and there to carry plaintiff safely; that, failing in this duty, and with a reckless disregard for the safety of plaintiff, and knowing that the probable consequences thereof would be to inflict injury on plaintiff, willfully, wantonly, or intentionally moved or ran said car while plaintiff * * was in the act of getting off said car, so that, as a proximate result thereof,” plaintiff was injured. We do not think this count is in trespass, but that it is in case. The wanton or willful act charged was the moving or running of the car by the defendant. From that act, because of plaintiff’s described situation, injury resulted, not immediately, or directly, but as a consequence. — City Delivery Co. v. Henry, supra. The amendment made gave the count this language: “That it was the duty of said defendant to carry plaintiff safely; that, failing in this duty, and with a reckless disregard for the safety of plaintiff, and knowing that the probable consequences thereof would be to inflict injury on plaintiff, the employe or employes in charge of said cai at said time and place, acting within the scope of his or their duty or duties as such employe or employes of such defendant, willfully, wantonly, or intentionally moved or ran said car while plaintiff was in the act of getting off said car, so that” he was injured. The demurrer takes the objections that the amended count is for simple negligence of the employe or employes. Construing, as we must, the count most strongly against the pleader, the averment of duty in the first quoted sentence is the duty the failure to perform which is immediately thereafter [106] averred. The word “this” can refer to no other duty than that of the defendant. But the main inquiry, controverted between counsel, is whether the conjoined descriptive sentences, beginning with the words “with a reckless disregard” and ending with the word “plaintiff,” refer to the defendant’s breach of duty or to the latterly asserted misconduct of the employe? If these sentences refer to the employe or employes, the count would he a good one for a willful or wanton injury by him or them; but, if to the defendant, the count would then charge simple negligence of the employe, who is not averred to have so operated the car with knowledge essential to impute the more aggravated misconduct. It is obvious 'that, regardless of the rule of construction of pleaing, it is extremely uncertain to which substantive averment, viz., of the duty breached or of the character of the employe’s wrong, the descriptive sentences relate. If the sentences were transposed to a position following the word “employes,” there would be no doubt that to their misconduct reference was had. But we are not authorized to reconstruct pleadings in any degree* must, less to render, by transposition, that certain which the pleader has .made uncertain. We can.see no escape from the construction that the conjoined sentences qualify and refer to the manner and circumstances under which the defendant, as distinguished from the employe, failed to perform the duty averred to have lain on it. So it results that the count does not legally aver the willful or wanton misconduct of the employe, and, therefore, only charges simple negligence; and the demurrer was properly overruled. The amendment had the effect to impute the wrongful act to the employe; hence the grounds for misjoinder were not well taken. On the other hand, [107] the plaintiff’s demurrers to pleas setting up contributory negligence as an answer to the second count should not have been sustained upon the ground that they were interposed to a count for willfulness or wantonness; that count as amended being' for simple negligence. Whether the pleas of contributory negligence are otherwise invulnerable we are not called upon to decide. See Hunter v. L. & N. R. R. Co.. 150 Ala. 594, 43 South. 802, 9 L. R A. (N. S.) 848. The measure of damages, where the personal injury wrongfully suffered is shown to be permanent, is “compensation for the disabling effects of the injury; past and prospective. In estimating the damages, the loss of time and the incapacity to do as profitable labor as before the injury, as well as the mental and physical suffering caused by it, are pertinent and legitimate fac-' tors.” — M. & O. R. R. v. George, 94 Ala. 199, 10 South. 145. As affording data from which the jury may ascertain the future duration of and the consequent loss in impaired earning capacity entailed by the injury, we think the mortality table may be introduced in evidence as bearing upon the inquiry of the life expectancy of the plaintiff. — 20 Am. & Eng. Ency. Law (2d Ed.) 883, and authorities in note 2. But the rule for the ascertainment of damages declared in the Trammell and McAdory Cases, 93 Ala. 450, 9 South. 587, and 94 Ala. 272, 10 South. 507, respectively, is inapplicable, except in cases of death; and possibly others though that is not necessary to be decided. From what is written in the cases referred to and those of L. & N. R. R. v. Orr, 91 Ala. 548, 8 South. 360, and James v. R. & D. R. R., 92 Ala. 231, 9 South. 335, it is obvious that no other opinion than that we have stated, can be entertained. The rule owes its existence to an effort to arrive at the value of [108] the life for the benefit of dependent next of kin and distributees of the estate of the deceased. Where the injury does not result fatally, the plaintiff will be the beneficiary of the damages recovered, and to allow him the value of his life, which he yet has, is, of course, absurd. There were many special charges requested by the defendant predicating the denial of the right of the plaintiff to recover unless the jury were reasonably satisfied that the car in question stopped more than once on this occasion. These were correctly refused, for the reasons that they were in reality singling out and placing stress upon a particular fact in the cause; that they forbade a recovery upon the belief of a certain fact, notwithstanding the jury might have, under the pleaings, found the defendant liable, and at the same time have shared defendant’s view of the asserted fact; that they sought to turn the result in the cause upon a single fact, whereas the issues were, of course, broader. There is no occasion to consider other errors assigned. The judgment is reversed, and the cause remanded. Tyson, C. J., and Dowdell and Anderson, JJ., concur.