Northern Alabama Railway Co. v. Counts

DOWDELL, C. J. The bill of exceptions in this case contains a recital as to matters transpiring at a term of the court prior to the term at which the present trial was had, and to the rendition of the judgment from which this appeal is taken, and before a different judge from the one who presided when the judgment appealed from was rendered. In this way it is here sought to present for review rulings on motions at the former term. This cannot be done. In order to preserve the right of review on appeal in such a case, the bill of exceptions should be of the term at which the rulings excepted to were had, and be signed by the judge presiding when the rulings were made. The questions therefore relating to the motion to vacate the return of the officer on the process, the amendment, etc., pertaining thereto, and the rulings thereon, occurring at a prior term, are not properly raised, and are not to. be considered. Bulings of the trial court on motion to strike .pleadings can be raised on appeal only when properly presented by bill of exceptions. The bill of exceptions in this case is silent in reference to any action of the court on motion to strike plea No. 14, except where it is stated as ground of a motion for a new trial. A motion for a new trial cannot serve the office of a bill of exceptions. Exceptions to the ruling on the [554] motion should have been taken at the time, and the motion and the rulings thereon and the exception reserved should be shown by the bill. Rulings of the court on demurrers to the second and third counts of the complaint, and on demurrers to the sixth plea, are assigned as errors; but these assignments are not insisted on, and therefore will not be considered by us. There was no error in permitting witnesses to testify as to the location of the public street with reference to the alleged accident. There was evidence tending to show that the street in question had been used as such by the public for more than 20 years. This was certainly competent.as tending to show its public character, and the consequent duties of a railroad operating trains across it. — Elliott on Streets and Roads, § 178. It was also competent, under the complaint and the issues in the case, to show the frequency of travel by pedestrians along' the path between the defendant’s railroad tracks, in the town of Russellville, where the injury occurred, and the defendant’s knowledge of the condition and frequency of such travel. There was no error in the admission of the evidence of the witness Grover Cook in reference to the rod projecting from one of the cars in train No. 4, at Jasper, on the day of the accident; this being the same train that inflicted the injury. Taken in connection with the plaintiff’s testimony that several cars of the backing train had passed him when he was struck by something about his shoulder, and was knocked down, this evidence was entirely relevant and competent. It afforded a reasonable inference to be drawn by the jury that that car with the projecting rod, seen at Jasper, and constituting a part of train No. 4, still constituted a part of said train of 25 or 26 cars at Russellville, where [555] the injur3' occurred, and that the projecting rod was what struck and knocked the plaintiff down. There was evidence which tended to show that the train of cars that injured the plaintiff was being backed up to the station without lookout or signals, and at a time when, and a place where, there ivas a frequency of travel, known to defendant’s servants in control of the train, along the path between the tracks where the plaintiff was at the time, and under the circumstances and conditions at a rate of speed not only dangerous, but reckless. On this phase of the evidence, under our decisions, it was open for the jury to find that the injury was wantonly inflicted. — A. G. S. R. R. Co. v. Guest, 136 Ala. 348, 34 South. 968; Southern Railway Co. v. Shelton, 136 Ala. 191, 34 South. 194; Haley v. K. C., M. & B. R. R. Co., 113 Ala. 640, 21 South. 357. The court therefore properly refused the general charge requested by the defendant under the count of the complaint charging wanton wrong and injury. The court likewise properly refused to the defendant the general charge under the count of the complaint charging simple negligence. There was evidence that tended to show that the injury occurred at a public street crossing in the town of Russellville, and that the train at the time was being operated without signals or lookout. It requires no argument or citation of authority to demonstrate that this constituted negligence. The evidence in the case has been carefully considered, and we do not think it can be said that the verdict of the jury was against the weight of the evidence. Nor are we prepared to say under all the circumstances that the verdict was excessive. — Southern Railway Company v. Crowder, 130 Ala. 256, 30 South. 592. There was no error in overruling the motion for a new trial. [556] We find no reversible error in the record, and the judgment appealed from will be affirmed. Affirmed. Anderson, Sayre, and Evans, JJ., concur.