A. G. S. R. R. v. Hanbury

DENSON, J. Near Woodstock, in Bibb county, the Alabama Great Southern Railroad and the Birmingham Mineral Railroad (the latter being a branch of the Louisville & Nashville Railroad) intersect each other at grade. The crossing is known as “Blocton Junction.’’ The course of the Alabama Great Southern, at the junction, is north and south, while that of the Birmingham Mineral is east and west. The plaintiff’s intestate, Henry M. Hanbury, was in the employment of the Louisville & Nashville Railroad Company, as conductor of a passenger train, and on the 25th day of September, 1905, while the train of which he was at that time conductor was passing over the crossing above referred to, one of the defendant’s engines, drawing a freight train, ran into the passenger train, and caused his death. This action is brought by the administratrix of the estate of the deceased Henry M. Hanbury, against the Alabama Great Southern Railroad Company, to recover damages for the alleged wrongful and negligent killing of the intestate. The trial of the cause in the circuit court resulted in a judgment in favor of the plaintiff in the sum of f10,000, from which judgment the defendant prosecutes this appeal. — 369 — There were numerous counts in the complaint, some original, and others added by way of amendment; but before the cause was submitted to the jury all of the counts, saving the first count as amended, together with the nineteenth and the twenty-third, were by leave of the court withdrawn by the plaintiff. Demurrers to these three counts were overruled by the court, and that ruling is here challenged by appropriate assignment of errors. Sundry grounds are assigned for the demurrer to the first count, but we find only one point made against it in brief of appellant’s counsel, namely, that it does not aver or show that the agents or servants of the defendant were acting within the line and scope of their authority, and it is conceded in the brief that this point is not presented by the demurrer; but the argument in support of the point proceeds upon the theory that, without the averment that the persons operating defendant’s train were, in running the'train, acting within the scope of their authority, the count fails to state a substantial cause of action — would not support a judgment by default, and therefore that the affirmative charge requested by the defendant, in respect to said count, should have been given. The count seems to be a copy, mutatis mutandis, of count 1, which was held good against a demurrer, on the ground of generality of averment in respect to negligence, in the case of Southern Railway Co. v. Bryan, Adm’x., 125 Ala. 297, 28 South. 445. But the point now presented was not made in that case. However, we are of the opinion that the point is not well taken in the present case. In the premises of the count it appears, among other things, that the defendant, on the day of the accident, was operating its line of railroad (that intersecting the Birmingham Mineral Railroad at Blocton) for the trans-portion of freight and passengers, and, after stating that — 370 — plaintiff’s intestate was conductor of a train of the Birmingham Mineral Railroad that was passing over said crossing on the 25th day of September, 1905, the count avers that “defendant’s train, consisting of an engine,, operated by steam, and several cars, came along over said defendant’s said railroad toward Birmingham, Ala., and ran into or collided with the train or car on which plaintiff’s intestate was riding,” etc. The count then continues : “And plaintiff avers that the death of her intestate was proximately caused by the negligence of defendant’s employes who were operating defendant’s said train of cars, in the running and management of said train,” etc. It seems to us that it would be extremely technical to hold that the count fails to show a substantial cause of action, or even to hold that it fails to show that the servants of the defendant were acting within the line or scope of their authority in operating the said engine and cars. The facts here alleged clearly differentiate the instant case from that of Daniels v. Carney, 148 Ala. 81, 42 South. 452, 7 L. R. A. (N. S.) 920, 121 Am. St. Rep. 34, relied upon by the appellant’s counsel to support their contention. There is scant, if any, difference between the first count, as amended, and the nineteenth count. The same demurrer is filed to each, and the same course has been adopted, in the brief, in the treatment of the two counts. So that, upon the foregoing considerations, it must be held that there is no merit in the points made in the brief against the nineteenth count. Count 23 is in the following language: “The plaintiff claims of the defendant the sum of f25.000, as- damages, for that heretofore towit, on or about the 25th day of September,'1905, the defendant was a body corporate, and for the carriage of freight was operating a railroad running through the state of Alabama, a line of said road — 371 — running through Jefferson and Bibb counties, in Alabama, near the village of Woodstock, in Bibb county; and on or about the 25th day of September, 1905, the Louisville & Nashville Railroad Company was also, for-the carriage of freight and passengers, operating a railroad in said counties, near the village of Woodstock, in Bibb county, Ala., commonly known as the ‘Birmingham Mineral Railroad,’ which also passed through Jefferson county and Bibb county, in said state, and crossed defendant’s railroad near said village of Woodstock, at. grade, said crossing being known as the ‘Blocton Junction.’ And plaintiff further avers that on or about the-said 25th of September, 1905, her intestate was a conductor in the service or employment of said Louisville- & Nashville Railroad Company, and was running a train of cars on-said Birmingham Mineral Railroad, and over and across said defendant’s railroad at said Blocton Junction; and when the train of cars or car on which plaintiff’s intestate was a conductor, and on which said plaintiff’s intestate was riding, was upon said crossing,, defendant’s train, consisting of an engine operated by-steam, and several cars, in charge of defendant’s employe or employes, came along on said defendant’s railroad towards Birmingham, Ala., and that defendant’s-employe or employes, who were in charge of said engine- and train of cars recklessly and wantonly or intentionally ran defendant’s said engine into and collided with the train or car on which plaintiff’s intestate was conductor and on which plaintiff’s intestate was riding, and thereby killed plaintiff’s intestate. And plaintiff further avers that the said defendant’s employe or employes,, who were in charge of and operating said train, recklessly and wantonly or intentionally caused the death of' plaintiff’s intestate, in that defendant’s said employe or employes recklessly and wantonly or intentionally caus — 372 — ed said collision, to plaintiff’s damages in the sum of $25,000.” It occurs to us that the facts set forth in the count show, with sufficient certainty, that the employe or employes operating the train were acting within the scope of their authority, although it is not averred in so many words that they were so acting. And according to the cases of Birmingham Mineral, etc., Co. v. Jacobs, 92 Ala. 187, 192, 9 South. 320, 12 L. R. A. 830; Louisville & Nashville Railroad Co. v. Anchors, 114 Ala. 492, 500, 501, 22 South. 279, 62 Am. St. Rep. 116; Louisville & Nashville Railroad Co. v. Orr, 121 Ala. 489, 498, 26 South. 36; Memphis & Charlestown Railroad Co. v. Martin, 117 Ala. 367, 381, 23 South. 231; Birmingham, etc., Co. v. Baker, 132 Ala. 507, 31 South. 618; and Alabama Great Southern Railroad Co. v. Williams, 140 Ala. 230, 237, 37 South. 255 — the count is sufficient as one charging a wanton or intentional injury, is in case as against the defendant corporation, and is not subject to the demurrer interposed thereto.- — Highland, etc., Co. v. Sampson, 112 Ala. 425, 434, 20 South. 566; Southern Bell, etc., Co. v. Francis, 109 Ala. 224, 19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930; City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389; Hess v. Birmingham, etc., Co., 149 Ala. 499, 42 South. 595. Besides the general issue, the defendant pleaded 11 special pleas, in 10 of which contributory negligence of the plaintiff’s interstate is relied upon as a defense; and by the twelfth plea the defendant set up contributory negligence of the engineer in charge of the engine which was drawing the train of which the intestate was conductor, and sought to impute the engineer’s negligence to the intestate. Demurrers were sustained to pleas 3 and 12, and also to pleas 8 and 9 as these two last mentioned were originally filed. It is obvious, under onr — 373 — decisions, that plea 3 is open to the demurrer that it states a mere conclusion. It is also clear that, even if pleas 8 and 9 in their original form were not open to the demurrer directed against them, the amendment, made after demurrer sustained, placed no greater burden upon the defendant, under said pleas, than was rightly upon it under said pleas as they originally stood. Furthermore, all the matters set up in said pleas were gone over in the evidence, and the defendant cannot take anything on the grounds of error challenging the tidal court’s judgment on the demurrers to these pleas. Whether or not the negligence of an engineer of a passenger train may he imputed to the conductor of the train, in a case like this, has not been determined by this court, so far a's we are now advised. Generally speaking, “in order that the concurrent negligence of a third person can he interposed to shield another, whose negligence has caused an injury to one who was without fault, the injured person and the one whose negligence contributed to the injury must have sustained such a relation to- each other, in respect to the matter then in progress, that in contemplation of law the negligent act of the third person was, upon the principle of agency, or co-operation in a common or joint enterprise, the act of the person injured.” — Town of Knightstown v. Musgrove, 116 Ind. 121, 18 N. E. 452, 9 Am. St. Rep. 827; 29 Cyc. 542. This court has recognized the principle above stated in the cases of Elyton Land Co. v. Mingea, 89 Ala. 521, 529, 7 South. 666, and Birmingham, etc., Co. v. Baker, 132 Ala. 507, 31 South. 618. Here, the twelfth plea shows that the plaintiff’s intestate was the conductor of the train into which defendant’s train ran, and that he was, with the engineer of said train, jointly in charge and control thereof. It also avers that the engineer of the train negligently propelled the said train — 374 — upon the crossing, in front 0of the moving train of the defendant. It seems to us that the plea shows a co-operation of the engineer and the conductor, in a joint enterprise, in such sort as brings the case within the doctrine above stated, and, construing the plea in connection with the statute (section 3441, Code 1896; section 5474, Code 1907), which provides: “When the tracks of two railroads cross each other at grade, engineers and conductors must cause the trains of which they are in charge to come to a full stop within one hundred feet of such crossing, and not proceed until they know the way to be clear,” etc. — the co-operation of the engineer and conductor, their joint responsibility in respect to carrying out the requirements of the statute, and their joint control of the train, are matters clearly fixed, and fixed in such sense as that the negligence of the one, in respect to the duties imposed by the statute, is imputable to the other. Cases cited, supra; Martus v. D. & L. W. Ry. Co., 15 Misc. Rep. 248, 36 N. Y. Supp. 417; Abbitt v. Railroad Co., 150 Ind. 498, 50 N. E. 729. But the twelfth plea is open to one or more of the grounds of the demurrer sustained to it, aside from the ground which presents the point above discussed. Negligence on the part of the engineer, or even on that of the person injured, to prevent a recovery, must have proximately contributed to the injury, and a plea which fails to show such proximate contribution is bad. The demurrer is sufficiently specific to present this point, and the circuit court committed no error in sustaining the demurrer to the plea, as it does not aver or show that negligence of the engineer proximately contributed to the injury. The collision occurred at about 4 p. m., on September 25, 1905. The passenger train of which plaintiff’s intestate was conductor was composed of an engine and — 375 — tender 30 feet long, and four cars or coaches each about 60 feet long, thus making the train about 270 feet long. The defendant’s train was composed of an engine and tender, and 26 or 28 loaded freight cars. The passenger train was going eastward, and the defendant’s train was .-approaching the crossing from the south. It is conceded that the defendant’s servants in control of its train were guilty of simple negligence; but it is insisted by the appellant that the engineer and conductor of the passenger train were guilty of negligence that proximately contributed to the conductor’s death, and that defendant’s servants were not guilty of wantonness, nor of intentional wrong. Whether or not the passenger train made the stop required by the statute, before proceeding upon the crossing, is a question upon which the evidence is in irreconcilable conflict. The fireman of the engine of the passenger train testified: That his engineer gave the usual signals for the crossing, and brought the train to a full stop within the statutory distance; that he (the fireman) was sitting on the fireman’s seat when the train stopped; that he jumped up and said to the engineer, “Nothing doing over here”; that he was looking-out on the left side, and could see the crossing; that it was clear; and that the engine stopped, blew for the crossing, and moved on. The engineer was on the side whence defendant’s train was approaching, but he was not examined as a witness. Hence there is no positive evidence that he saw, or did not see, defendant’s train, was then 600 feet distance from the crossing. Furthermore, the evidence for the plaintiff tends to show that the passenger train was moving at the rate of 4 miles an hour while passing the crossing, and the undisputed evidence shows, that the engine of defendant’s train struck the passenger train at a point between the rear coach and the one just forward, thus disclosing that the — 376 — passenger train’s engine (taking into account its length and. the aggregate length of its coaches) was at least 205 feet from the crossing, eastward, when the collision, occurred; while the evidence, likewise without conflict, shows that the freight train was running at the rate of 8 to 10 miles an hour, thus demonstrating that, even when the passenger engine reached the crossing, the freight train (if seen by the engineer of the passenger-train) was more than 100 feet distant from the crossing. On the other hand, if the freight train was seen by said engineer of the passenger train when, according to the tendency of plaintiff’s testimony, the passenger train stopped, it must have been more than 600 feet distant from the crossing. In fact, there is testimony in the record from which it might be inferred that the freight train was at that time as far as 800 feet from the crossing. Under these conditions or phases of the evidence, the defendant’s train, at the time the passenger train moved upon the crossing, even if it had been seen by the engineer and conductor of the passenger train, was not in dangerous proximity. It was some distance short of the point where under the law it was required to- stop, and those in control of the opposing train could legally presume that it would stop. Therefore, whether the conductor and engineer of the passenger train, or either of them, was guilty of negligence in proceeding upon the crossing, was a question properly determinable by the jury. — Birmingham, etc., Co. v. Jacobs, 101 Ala. 149, 13 South. 408; Southern Railway Co. v. Bryan, 125 Ala. 297, 28 South. 445; Southern Railway Co. v. Bonner, 141 Ala. 517, 37 South. 702. It follows that the court properly refused those charges requested by the defendant, asserting, as a matter of law, that the engineer and conductor, or either of them, was guilty of negligence; — 377 — and also properly refused the general affirmative charge, as to the whole case, and as confined to counts one and nineteen. In this category fall charges 1, 2, 4, 18, 17, 21, 3, 16, 22, and 47; and, of these, charges 18, 19, and 21 are also misleading. It is important now, to determine whether or not the conditions and circumstances developed by the evidence afford a reasonable inference of wantonness. The trial court evidently took the view that they do, as is evinced by the oral charge, as well as by the rulings made in respect to special instructions requested in writing by the defendant. The crossing where the collision occurred is about a fourth of a mile from the village of Woodstock. So far as the evidence shows, there are no houses near the crossing except the station house of the Birmingham Mineral Railroad, which is from 200 yards to 250 yards west- of the crossing. The only evidence in respect to the frequency of the passage of trains of the Birmingham Mineral, over the crossing, during the day, ' is that two trains had passed in the forenoon of the day of the collision, one at 8:55 and the other at 9.: 55, and that one passenger train (that with which defendant’s train collided). reached there at about 4 in the afternoon. The passenger train was 15 minutes late when it reached the crossing, the defendant’s train was on its schedule time. The crossing was not regulated by interlocking device, derailing switches, or other safety appliances, of like kind, designed to prevent collisions, and no flagman or watchman was stationed there. The engineer of the freight train, of course, knew the crossing was ahead of him; and, notwithstanding the evidence in this record shows that only two trains had on that day passed along that section of the Birmingham Mineral, before the passenger train in question, it is not burdensome to charge him with knowledge that — 378 — trains on that road were liable to pass at any time. Indeed, he must have known that it was near the due time of the very train he ran into, although it was 15 minutes late. That the crossing was not equipped with or regulated by safety appliances was also known to him, and he, of course, knew the distance within which his train could be stopped. Under these conditions and circumstances — granting that he did not see the passenger train — according to his own testimony he released his brakes when his train (composed of an engine and 26 cars) was 600 feet from the crossing, and began working steam on his engine. Continuing, he testified that his train thereupon approached the crossing with accelerating motion, and was running at such a rate of speed when he first became aware of the presence of the passenger train (which was, as he stated it, when his train was at least 125 feet distant from the crossing), as to baffle all means known to skillful engineers that would tend to stop it before it reached the crossing, in time to prevent the collision — and this, notwithstanding his train was moving upgrade. Manifestly the law considers the crossing of two railroads a more dangerous place than the crossing of a public highway and a railroad. This is evidenced by the fact that trains are required by statute to come to a full stop within 100 feet of any railroad crossing, and to see that the way is clear before proceeding. That employes having charge and in control of trains approaching railroad crossings are not actually aware of the dangerous proximity of other trains, should not, we think, be a controlling factor in determining whether or not wantonness may be predicated of their conduct in attempting to pass their trains over such crossings. The paramount question is: Are the conditions and circumstances of the given case, known to the em — 379 — ployes, such as would impress a reasonably prudent man with the consciousness that such conduct, on his part, would naturally or probably result in injury or disaster? Without further extending this discussion, the court announces the conclusion that, under the conditions and circumstances of the instant case, it was proper for the court to submit the question of wantonness vel non to the jury. — L. & N. R. R. Co. v. Anchorrs, 114 Ala. 492, 22 South. 279, 62 Am. St. Rep. 116; L. & N. R. R. Co. v. Orr, 121 Ala. 489, 26 South. 35; Birmingham Southern R. R. Co. v. Powell, 136 Ala. 232, 242, 33 South. 875. The evidence tends to show that the conductor of the passenger train, upon discovering the approach of the defendant’s train, ran through the rear coach and onto the platform leading- therefrom to the coach next forward; such being the point, or about the point, of his train that received the collision. The evidence also showed that, while the engineer of the defendant’s train (after actually discovering the passenger train) did all that a skillful engineer could have done, to prevent the collision, yet he failed to sound the whistle. The court, in the oral charge, and obviously in view of this testimony, instructed the jury as follows: “Now is it not sufficient, gentlemen, that the engineer in charge of the Alabama Great Southern Railroad train should have done all he could to avert the collision. H'e had to go a step further. He had to do all in his power to avert the injury, why, he would be liable, the company Avould be liable for the wanton negligence of the defendant’s employes. If he could by giving an alarm signal or have done anything within the means or power to have enabled the plaintiff’s intestate to escape injury, then the company would be liable, although the engineer may have done all he could to avert the actual collision. It — 380 — was Ms duty not only to avert the collision, but bis duty to avert tbe injury, if be bad tbe means in bis power to do so.” Tbis charge tbe defendant duly excepted to. In this connection, tbe defendant requested tbe court in writing to charge tbe jury as follows: “The court charges you that, if you believe all the evidence in tbis case, there was no duty on defendant’s engineer, after becoming aware of tbe approach of the Louisville & Nashville train to the crossing, to give any signal of bis approach by bell or whistle.” Tbe oral charge manifestly makes a distinction between tbe collision and tbe injury — tbe killing of tbe conductor — and would, in the light of tbe evidence, leave it open for tbe jury to find a verdict against tbe defendant because tbe whistle was not blown after tbe engineer discovered the presence of tbe passenger train, notwithstanding tbe undisputed evidence shows that tbe engineer resorted to every means known to skillful engineers to avert tbe collision, after be was apprised of tbe dangerous proximity of tbe passenger train. Then, there is no reasonable inference deducible from tbe evidence, other than that tbe conductor was aware, when he started, and while he was passing through tbe coach to tbe platform, that a collision was imminent, and that immediately upon bis reaching tbe platform tbe collision occurred, and be was instantly killed. Therefore we cannot perceive bow a blast of tbe whistle could have prevented tbe collision, or have made tbe conductor any more cognizant of tbe dangerous proximity of the defendant’s train than he already was. Moreover, tbe defendant’s engineer did not see the conductor. Withal, tbe court is of tbe opinion that no duty rested upon the engineer to sound tbe whistle after be was appraised of tbe dangerous proximity of the passenger train. Tbe court erred in tbe oral' charge, and erred in refusing charge 33, set out above. — 381 — Having determined that wantonness was a question for the determination of the jury, many of the charges in the defendant’s series we hold to have been properly refused for ignoring that inquiry. They are numbers 1, 26, 27, 37, 36, 35, 34, 45, 47, 33, 38, 39, 7, 21, 12, 16, 18, 17, 20, 28, 29, 31, 30, 25, 23, 45, and 32. Charges 40 and 42 were properly refused, for the reason that they invoke the-doctrine of imputed negligence; whereas, the only plea setting up in this defense was ruled out of the case by demurrer thereto sustained. Charges 53 and 54 do not hypothesize the acts mentioned, as constituting negligence proximately contributing to !he injury. Charges 5, 9, and 15, are general charges in respect to wantonness, and were properly refused. Charges 46 and 24 are misleading. Charges 8 and 6 are patently bad, and were properly refused. Charges 12, 11, and 10 are misleading, and also pretermit wantonness. Charge 21a is argumentative and fails to hypothesize that the negligence of the intestate proximately contributed to his injury or death. Charge 66 assumes that the conductor’s gong on the platform was negligence, and is invasive of the province of the jury. Charge 51 hypothesizes a. verdict for plaintiff, and, assuming it to be otherwise correct, the defendant was not injured by its refusal. The court committed no reversible error in the rulings on the admissibility of evidence. For the errors pointed out, the judgment must be reversed, and the cause remanded. Beversed and remanded. Dowdell, C. J., and Simpson and Mayfield, JJ., concur.