Southern Ry. Co. v. Gullatt

McCLELLAN, J. The report of this case on former appeal may be found in 150 Ala. 318, 43 South. 577. The second count of the complaint, upon which the trial — 505 — was liad, ascribes the negligence to liability to the operatives of the train by which Kirby was killed, in that, after discovery of his peril, proper care and diligence was not exercised to avert the,injury to him. The particular averment is “that the agents and servants of the defendant then and there in the control and management of said train saw the peril of the plaintiff’s intestate, and after the discovery of said peril” the train was negligently run upon intestate, killing him. The predicate to the duty alleged in the count to have been breached, to the proximately consequent injury of intestate, is knowledge of the peril of intestate by those in control of the defendant’s, train. Of course, to make out the case under the count, the averred fact of knowledge of the peril stated was absolutely essen-tial. It is insisted that, on the trial after reversal, this testimony so far sustained the important averment and condition to the duty declared as to carry the prima facie case and to require the submission of the question to the determination of the jury, namely, that one Kennemar was sitting in a room of his house, near the rail way; that lie heard three or four short, shrill whistles, one right after the other; that he had lived near a railroad all his life, and knew the blasts that are made for cattle and things on the track; that he had often observed that kind of blowing for things on the track; that he at once ran from the room and across the porch, a distance of about 18 feet, to the edge of the porch, looked in the direction from which the train was coming-saw it emerge from a skirt of woods about 89 yards from where blood from the intestate appeared on the track, and then looked along the1 track in front of the train, but- could not see anything; and that, had a man been standing upon the track, he could have seen him. — 506 — We have considered with great care the question indicated, and are not prepared to say that the trial court erred in the submission of the matter to the jury. The inference that the engineer saw intestate on the track, before an oncoming train, running 25 or 30 miles an hour, may be reasonably deduced from the fact,testified to by Kennemar, that the signal heard by him he had often heard used for cattle and things on the track, and from the further uncontroverted fact that intestate Avas on the track Avhen the train struck and killed him. Whether this inference should be drawn is, of course, another question, Avhich must be left to the sound discretion of the jury. It is unquestionably an argument against the adoption of such an inference, under the cir- • cumstances, that the blows of the Avhistle may have been given for a different purpose or suggested by a different object on the track. But this is an argument only in opposition to the adoption of the inference reasonably deducible from the facts testified to. Likewise, it is an argument only that, though the bloAvs Avere sounded Avith reference to intestate, and his proximity to, or attitude about, the track ahead of the train, the peril of intestate may not have then existed and have been knoAvn to the engineer; because, if the jury credited the testimony of Kennemar, the whi sties blOAvn Avere, as he often heard, used Avhen cattle and things Avere on the track and, if so, intestate Avas on the track, in a doAvn posture, before an oncoming train, and, if so, he Avas in a position of extreme peril, unless the train was stopped. We have said enough to indicate the ground for our conclusion that the general affirmative charge for the defendant Avas properly refused on this phase of the case. On the former appeal there Avas no testimony tending to show that the train could, by the exercise of proper care and diligence, have been stopped short of the. point — 507 — of contact tvith intestate. On this trial there was testimony tending to show that the train could have been so stopped by the exercise of such care and diligence. If the jury, as they might, from the testimony, have done, found that the discovery of intestate’s peril was made at the time the whistle was sounded, then the duty to resort to the means suggested by due care and diligence arose, and, if some tendencies of the evidence were credited by the jury, these means would have averted the injury. The testimony, to which defendant objected, showing where intestate resided before his death, and also that showing where and for how long the witness had resided at his place of residence, could not have worked injury to the defendant. The question to the witness Osborne, as an expert, in reference to the distance in which a passenger train of five or six cars, of certain equipment, running 25 or 30 miles an hour, could be stopped, was objected to upon the grounds of illegality, immateriality, and because the witness was not qualified as an expert. The two first grounds did not take the point, argued in brief, that elements were included in the hypothetical question not shown by the evidence. The broad grounds of illegality and immateriality were not definite enough to direct the court’s attention to the point indicated and now argued. We think Osborne qualified as an expert in the operation of engines. He had served, about 20 years ago, 2 years as a fireman and 3 years as a freight train engineer, though he never ran a passenger train, and had “for a long time noticed passenger trains being stopped.” The general similarity between locomotives used for passenger and freight service is sufficient to justify, in respect of their operation, the opinion of a person familiar with the other and without experience with the first. — 508 — However that may be, there is nothing in the record tending to show that the engine drawing the train in question was not of the same type as that usually used to draw freight trains. Nor do we think the mere dissimilarity between the cars composing a freight train and those composing a passenger train necessarily renders valueless a person’s opinion whose experience has been limited to the handling of the other class of trains. The relative distance in which either may be the more quickly stopped is, as appears, subject to many conditions of track, weather,- and appliances; and that some conditions are present and some are absent cannot disqualify one shown to have had several years of experience in operating locomotives. The weight to be given the opinion of the expert is, in this as in all cases, a very different matter. The court properly overruled the objections to the question to Osborne. The plaintiff was permitted, over objection, to prove how many coaches or cars the daily train of the defendant corresponding in schedule and number to that inflicting the injury usually carried. We think this was error. It had no sort of tendency to prove the composition of the train in question, and ivas, therefore, wholly immaterial. — T. C. I. & R. R. Co. v. Hansford, 125 Ala. 349, 365, 28 South. 45, 82 Am. St. Rep. 241. Evidence of the composition of this train could have been easily secured by propounding interrogatories under the statute, if, imleed, not otherwise. Charge 3 and 2, given at the instance of plaintiff, are not subject to appellant’s criticisms of them, and were properly given. From the bill it appears that the engineer who had control of the train in question was present in the courtroom upon the trial and was not examined. The defendant offered no evidence of any character. So far as the — 509 — bill shows there was no reference in the argument of counsel to any presumption to be indulged on account of the failure to examine the engineer, nor any special instructions requested by plaintiff in that connection. In this state of the case those special charges expressing a denial of any such presumption from the failure to examine the engineer were patently abstract, and no errors attend their refusal. We have carefully examined the other charges requested by, and refused to, defendant. They are each either abstract, argumentative, or affirmatively bad, and were well refused. As stated before, the issues were for the jury under all the facts and circumstances shown by the evidence; and hence the affirmative charge asked for the defendant was correctly refused by the court. The judgment, for the error stated, is reversed, and the cause is remanded. Reversed and remanded. Haralson, Dowdell, and Anderson, JJ., concur.