Nashville C. & St. L. Ry. Co. v. Wallace

ANDERSON, J. Count 4 refers to and adopts count 1 with the further averment that the servants in charge of the locomotive “saw the plaintiff and his property in said place of peril in time to avoid the injury, and negligently ran said engine, or permitted the same to be run, against plaintiff and his property after discovery of such peril to plaintiff.” The first count avers that plaintiff was required and did drive his team of mules and wagon, loaded with logs, “in a narrow pass-way between said spur track and the logs piled on the yard. While in this position, and engaged in unloading or preparing to unload said logs, the defendant by its agents, servants, or employes suddenly, an!d with great speed, backed a locomotive with tender attached in and upon said spur track, catching the plaintiff with his team and wagon in dangerous proximity to said track.” It is true the first part of the complaint does not necessarily aver that the plaintiff was in a perilous position while in the passway and- between the spur track and the logs, but it does later on aver that while in said position he was struck, and that, when he was struck, he was entrapped in “dangerous proximity” to said track. If he Avas in dangerous proximity to said track, he Avas in a perilous position, and, if he Avas seen after he got in the passAvay, he was seen while in a perilous position;, as the complaint, in effect, avers that he was in the same position after going in the pass214 way “a narrow passway between tbe spur track and tbe logs,” as he was when struck, and that be was therefore in dangerous proximity to tbe track. As tbe complaint charges negligence subsequent to á discovery of tbe plaintiff’s peril, be was chargeable only with negligence after becoming conscious of his danger. — A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84, and cases there cited. Tbe special pleas failing to aver knowledge by tbe plaintiff of bis peril or that he'was guilty of any negligence subsequent to a discovery of bis peril were subject to tbe demurrers interposed, in so far as they attempted to answer tbe fourth count, and were properly sustained. It is insisted that tbe pleas did not have to aver a knowledge by tbe plaintiff of bis peril, for tbe reason that tbe complaint did not aver that be was unaware of tbe danger. The fact that tbe plaintiff was aware of tbe danger is defensive matter, to be set up in tbe pleas, and tbe complaint need not negative tbe same. Count 5 avers that tbe defendant’s servants in charge of said train “knew that persons and teams were daily and in frequent numbers in said passway and in dangerous proximity to said spur track,” and these servants in charge of tbe locomotive, knowing of tbe probable peril and being conscious that such action would probably inflict injury, wantonly ran tbe engine upon or against him. This is a wanton count, and tbe pleas of contributory negligence, Avere not good answers to same and tbe demurrer thereto was properly sustained. Plea 3, whether good or bad, was, in effect, tbe same defense as set up in plea 4, and under which tbe defendant got tbe full benefit of tbe facts set up in said plea 3. [215] Plea 7 was no answer to count 1. The count, in effect, avers that plaintiff had to go where he did in order to unload his wagon and the doing of this was not negligence, unless he could have done it in a safer way or went there under conditions, not set up in the plea, that would render it dangerous or negligent in him to do so. The trial court did not err in refusing the general charge as to count 1. There was evidence from which the jury could infer that the plaintiff was required or compelled to be where he was in order to unload his logs. Nor was there a fatal variance as to the character of the plaintiff’s injuries. We do not decide that it was necessary to prove all injuries as averred, but, if such was the case, there was evidence tending to do so,- as the dislocation of the hip and knee and the spraining, etc., was averred in the alternative, and the averment was supported by the testimony of Dr. Foster. There was evidence in support of count 5, and the trial court did not err in refusing the general charge as to said count. The witness Arnold testified: “This place was used regularly for the business. Four or five teams were hauling in there every day. The accident occurred about 10 o’clock in the morning. The train generally passed about that time. There were always some wagons about that time unloading timber.” These facts made it a question for the jury to determine whether or not the trainmen were conscious of existing conditions, whether or not said conditions were dangerous, and whether or not the servant in charge of the train would be conscious of the dangerous result from running the train at that time and place. Moreover, there was evidence from which the jury could infer that some of the defendant’s servants saw the plaintiff while backing the engine and before reaching his wagon. So [216] much of the oral charge as was excepted to was not subject to complaint by the defendant. It required the plaintiff .to prove his injuries, as claimed in his complaint, before the burden shifted, and, under the statute (section 5476, Code 1907), all he had to do was to prove his injuries at a place covered by the three preceding sections, when the burden shifted to the defendant. — So. R. R. v. Smith, 163 Ala. 174, 50 South. 390. The proof showed that the injury was inflicted- at a place covered by section 5473, and it therefore was incumbent upon the -defendant to acquit itself of negligence under the terms of section 5476 of the Code of 1907. We are not prepared to say that the verdict was palpably contrary to the great weight of evidence, so as to put the trial court in error for refusing the motion for a new-trial. The judgment of the circuit court is affirmed. Affirmed. Dowdell, C. J., and Mayfield and Sayre, JJ., concur.