Birmingham Railway Light & Power Co. v. Hayes

ANDERSON, J. — Count D charged wanton misconduct on the part of the agents or servants of the defendant, and the trial court did not err in overruling the demurrer to same. If there was error, which we need not decide, in sustaining the objections to questions pronounded to the plaintiff, when on the stand as a witness, as to his answers to the interrogtories propounded to him under the statute, it was error without injury. The witness was a party to the cause, and no predicate had to he laid to contradict him by any previous declarations or testimony. The defendant had the right to introduce plaintiff’s answers to the interrogatories, and, if they conflicted with his testimony then being delivered, it would be just as effectual for purposes of impeachment as if the predicate was laid, and which was entirely unnecessary. The trial court did not err in sustaining the plaintiff’s objection to the question- to the witness Bargainer: “How long does it take a car going from 15 to 20 miles am hour to run 25 or 30 feet?” If this question is susceptible of a definite answer, the writer knows of no rule — 187 — of mathematics by which a result can be obtained. One with such a knoAvledge of mathematics as should be possessed by the average juror can readily calculate how long it Avould take a car to run a lesser distance than a greater, when running both at the same rate of speed and both distances are definitely fixed. But hOAV any one can give a definite answer to the foregoing question is beyond the comprehension of the court. As a general rule the declarations, verbal or written, of a witness, made out of court, are inadmissible in corroboration of his testimony on the trial of a cause.— Childs v. State, 55 Ala. 25; Nichols v. Stewart, 20 Ala. 358; Jones v. State, 107 Ala. 93, 18 South. 237; 1 Greenleaf on Ev. § 469. The witness Drummond had stated without objection what Bernard told him, and the paper purporting to contain the statement was but a writing of Drummond subsequent to the statement of Bernard to him, and Avas but an ex parte previous statement of Drummond as to what he understood Bernard’s statement to him was, as there was no proof that the paper was ever presented to or read over by Bernard, or was approved or signed by him, and the trial court properly sustained the objection to same. This question is unlike the one decided in the case of A. G. S. R. R. v. Clarke, 145 Ala. 459, 39 South. 816, 5 L. R. A. (N.S.) 867. There the paper had been read over to the Avitness, and there was proof that he admitted the correctness of its contents. Moreover, the statement was not previously proved by parol. Here the witness had testified to what Bernard told him, and then thé defendant sought to introduce the writing, Avhich could have only corroborated him, as it Avas never seen by Bernard. While there are exceptions to the rule above declared on this subject, this question does not come 'within the exceptions. — Yar — 188 — trough v. State, 105 Ala. 43, 16 South. 758; 1 Greenleaf, supra. The trial court erred in not permitting the witness Keiser to testify whether or not the stop was a usual or quick one. A witness-can testify whether a car is going slow or fast, or is stopped suddenly, or gradually, or quick or slow. The witness should also have been permitted to testify whether' or not he was thrown forward when the car was being stopped. If he was thrown forward, it would be a circumstance tending to show that the momentum of the car was being suddenly checked and that the stop was quick. But whether the trial court erred in sustaining the objection to the question in the form asked we need not decide, as the case must be reversed upon other propositions: The trial court erred in not permitting the defendant to ask the witness Ray if he used the most effective method of stopping the car in the quickest space of time? He was an expert, and had detailed what he did to stop the car, and could testify that what he did do was the quickest way to stop the car. — Chaote v. Southern R. R., 119 Ala. 611, 24 South. 373; A. G. S. R. R. v. Linn, 103 Ala. 134, 15 South. 508. The trial court erred in giving charge 6 at the request of the plaintiff. The charge is faulty for eliminating the defense of contributory negligence to a mere failure to keep a proper lookout. If the plaintiff was guilty of contributory negligence in going upon the track, then the defendant was not liable, unless its servants were guilty of wanton misconduct, or of subsequent negligence by failing to use all reasonable means to avoid striking the plaintiff after discovering his peril. The defendant could not be chargeable for wanton misconduct or for subsequent negligence because of a mere failure of the motorman to discover the plaintiff, and, if the — 189 — negligence of defendant was a failure to keep a lookout, contributory negligence on the part of the plaintiff would be a good defense thereto. — Johnson v. Birmingham R. R. Co., 43 South. 33; Peters v. So. R. R., 135 Ala. 537, 33 South. 332. The injury may have occurred at a place Avhere it Avas the defendant’s duty to keep a lookout; but his mere failure to do so was but simple, antecedent negligence, as against which contributory negligence is a complete defense. Charge 26, given at the request of the plaintiff, contains the same vice as charge 6, and should have been refused. The trial court should have refused charge 27, as it refers questions of laAV, as Avell as a construction of the complaint to the jury. Charge 29 Avas confusing, and calculated to mislead the jury, and should not be given on another trial. The fifth count of the complaint avers that “the defendant then and there by its servants or agents so wantonly conducted itself in and about the use, management, and operation of one of its cars * * as t-o wantonly run said car Avith great violence against the plaintiff.” The count charges the corporation with actual participation in the damnifying act, and, as there Avas no proof to support the averment, the defendant was entitled to the affirmative charge requested as to this count. — City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389; Central of Ga. R. R. v. Freeman, 140 Ala. 581, 37 South. 387; Birmingham Belt R. R. v. Gerganous, 142 Ala. 238, 37 South. 929. The trial court did not err in refusing charge 2, the general charge as to count B, requested by the defendant. It Avas a question of fact as to whether or not there was wanton misconduct on the part of the servants of defendant. There was evidence that the place where — 190 — plaintiff: was struck was a populous crossing, and that the conditions were known to the motorman, and that the car was going at a rapid and what might be dangerous rate of speed (not dangerous, perhaps, to passengers, but to people who were crossing). It is insisted by counsel that the crossing in question was not a populous one; but we think this was a question of fact, as there was evidence that a good many people lived near there, and one witness testified that as many as 75 people and vehicles crossed there daily. Charge 3, the general charge as to count C, requested by the defendant, was properly refused. "It was a question for the jury to determine whether or not the defendant was guilty of simple negligence. The complaint does not set out the quo modo, but charges negligence generally as to the handling and running of the car. Conceding, therefore, that the servants did all things to stop the car after discovering plaintiff’s peril, and that there was no subsequent negligence, the motorman may have been guilty of negligence for failing to stop at the station after being signaled to do so, and it was a ques-' tion for the jury to determine whether or not he saw the signal, or negligently failed to see it, if it was given, and whether or not it was his duty to stop at the station after getting signals. The appellant contends that the plaintiff was as matter of law guilty of conrtibutory negligence; but we cannot, under the particular facts of this case, hold that he was. Ordinarily a person who goes upon a railroad trade without first stopping and looking and listening for approaching trains is guilty of negligence, as would be the case if he went in front of an approaching train after discovering it. But there was evidence that there was a station between the plaintiff and the approaching car, that it was the custom to stop the car at said station when signaled, that it was — 191 — signaled on this occasion, and that the plaintiff saw his companion Bernard give the signal. It was, therefore, a question for the jury to determine whether or not the plaintiff was guilty of negligence in going upon the track under the peculiar facts of this case. If he had good reason to assume that the car would stop at the station after being signaled, he cannot, as a matter of law, be deemed guilty of negligence. Of course, he would be guilty of negligence in remaining on the track if he had time to get off before being struck ,and after discovering that the car had not or would not stop at the station; but as to whether or not he had time to get off after making the discovery was a question of fact for the jury. There was no error in refusing charge 4, the general charge requested by the defendant as to count D, and Avhich is covered by the discussion of charge 2. The trial court did not err in refusing charge 10, requested by the defendant. It was a question for the jury to determine Avhether or not the motorman had the right to assume that the plaintiff ivas not going upon the track, in Ariew of the eAddence as to the custom of the car to stop at the station, and of the further fact that the opening for boarding the car was on the opposite side. There Avas no error in refusing charge 26, requested by the defendant. It was for the jury to determine Avhether or not the plaintiff had the right to assume that the blowing of the Avhistle ivas in response to the signal and that the car Avould stop at the station. Charge 12, requested by the defendant, was properly refused. The conduct of the plaintiff in going upon the track has been fully discussed with reference to other charges. — 192 — The trial court did not err in refusing charge 17, requested by the defendant. It pretermits any wanton misconduct on the part of the motorman for running the car at a high rate of speed at the place of the accident. Charge 18, requested by the defendant, was properly refused, and is covered by previous discussions. Charge 44, requested by the defendant, was properly refused. It assumes, as matter of law, that the defendant was guilty of contributory negligence in going on the track, when it was a question of fact under the particular circumstances. The judgment of the city court is reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J., and Simpson and Denson, JJ., concur.