Birmingham R. L. & P. Co. v. Saxon

SIMPSON, J. This action is by the appellee against the appellant for damages on account of the death of the plaintiff’s intestate from being struck by a car of defendant’s. The first assignment of error insisted on is that the court erred in sustaining the demurrer to plea 5 as an answer to count 3 of the complaint. The court erred in sustaining the demurrer to said plea. The plea showed a knowledge of the danger by alleging that the — 152 — intestate, “loell knowing that defendant’s car was rapidly approaching,” “measured the distance and took the chances of crossing the track before the car reached him, and attempting to cross said track immediately in front of said moving car;” and it shows that such negligence was subsequent to the negligence of the defendant (if there was such) in failing to use preventive efforts, after discovery of the peril of the intestate, by alleging that said intestate left a place of safety, and thus stepped immediately in front of said rapidly approaching car “m such close proximity thereto that no preventive efforts on the part of the employees of defendant in charge of said car could have prevented injury to him.” If it was in such close proximity that no preventive efforts could have prevented the injury, it necessarily follows that, if there was any subsequent negligence on the part of the defendant, it must have been before said act of contributory negligence by the intestate. In the case of Johnson v. Birmingham Railway, Light & Power Co., 149 Ala. 529, 531, 534, 43 South. 33, the plea, in addition to being alleged in the alternative, does not show as definitely as does the one in this case, the knowledge of the peril and the time when the negligence occurred; and the court held that it simply set up a condition. In the case of Anniston Electric & Gas Co. v. Rosen, 159 Ala. 195, 200, 48 South. 798, 133 Am. St. Rep. 32, the only contributory negligence alleged was initial, and not subsequent. In the case of Louisville & Nashville Railroad Co. v. Calvert, 170 Ala. 565, 572, 54 South. 184, the plea does not allege any facts showing the distance at which the cars were when plaintiff attempted to cross, whether the danger was obvious to plaintiff, or whether it was be — 153 — fore or after the initial negligence of defendant. In fact, as said by the court, it alleged the negligence itself only as a conclusion. What has been said as to plea 5 applies, also, to the demurrers to plea 6. There was no error in sustaining the demurrer to plea 10 as an answer to count '3 of the complaint. No facts are alleged, showing that the negligence of the intestate was subsequent to that of the defendant, if there was such. For the same reason, there was no error in sustaining the demurrer to plea 11. There was no error in sustaining the demurrer to plea 12. It does not show that the intestate was aware of the peril. For the reasons above assigned, there was no error in sustaining the demurrers to pleas 13 and 14. For reasons already stated, and because plea 15 states simply conclusions, and not facts, there was no error in sustaining- the demurrer to s.aid plea. There was no error in sustaining the demurrer to plea 16. Besides being otherwise defective, said plea does not state that the negligence complained of was the proximate cause of the injury. There was no error in sustaining the demurrer to plea A. It does not show that the negligence complained of as contributory was subsequent to the alleged negligence of the defendant after the discovery of intestate’s peril. There was no error in sustaining the demurrer to plea B. While said plea does allege that intestate knew that the car was approaching, and in a subsequent part alleges that he attempted to cross when the car was in dangerous proximity, yet it does not allege that intestate knew it was in dangerous proximity. — 154 — There was error in sustaining the demurrer to plea C. Said plea sets up all the elements of contributory negligence subsequent to the negligence of defendant. It is hypercritical to say that it does not appear where the intestate was when an appreciation of his peril dawned on him. It states distinctly that, “fully appreciating his said peril,” he attempted to cross. In other words, at the time he attempted to crossj he fully appreciated the peril. As to this point, Mayfield, Sayre, and Somerville, JJ., concur, and Dowdell, C. J., and Anderson and McClellan, JJ., dissent. For the same reasons, the court erred in sustaining the demurrer to plea D. The demurrer .to plea E. was properly sustained, as it did not allege that the intestate was aware of the danger of crossing the track. The court erred in sustaining the demurrer to plea G, as it correctly states the law. There was no error in permitting the evidence as to whether the locus in quo was “a thickly populated neighborhood,” where there were “numbers of people on both sides of the track,” etc. Such evidence is permissible, in connection with other evidence, in order to determine whether the conditions at such place were such as to impute simple negligence or willful or wanton wrong to the engineer in running at a high rate of speed at the locality. — Highland Ave. & Belt R. R. v. Sampson, 112 Ala. 425, 434, 20 South. 566; L. & N. R. R. Co. v. Orr, 121 Ala. 489, 502, 26 South. 35; Weatherly v. N. C. & St. L. Ry., 166 Ala. 587-590, 51 South. 959. There was no error in overruling the objections to the questions as to whether Wilks Station was a regular station or stopping place, etc. Evidence as to the locality where the injury was received, its condition — 155 — and surroundings, cannot work any injury to either party. This was a collective fact to which any witness might testify. Por the same reason, there was no error in permitting the evidence as to at what hour of the day the crossing was most used. At any rate, the answers were favorable to the defendant, and it was not injured thereby. — Redus v. Milner, etc., R. Co., 41 South. 634; A. G. S. R. R. Co. v. Guest, 144 Ala. 383, 39 South. 654; A. G. S. R. R. Co. v. Guest, 136 Ala. 354, 34 South. 968; B. R., L. & P. Co. v. Ryan, 148 Ala. 76-7, 41 South. 616; Southern Railway Co. v. Forrister, 158 Ala. 483, 48 South. 69; Birmingham Southern Railway v. Fox, 167 Ala. 284, 285, 52 South. 889. There was no reversible error in permitting questions and answers as to whether there was anything to prevent the motorman from seeing one coming out of the store, and crossing. There was no error in permitting the witness, John Young, to testify as to the best and quickest way to stop a car — -to lessen its speed, etc. He testified that he had been a motorman for between seven and eight years, had had experience in stopping cars, etc.; and the court, in the proper exercise of its discretion, allowed the testimony. If there was any difference between the cars that the witness had managed and the one in question, that could have been brought out in cross-examination. There was no reversible error in excluding the expression by the witness Colbie, after he had stated what he did to stop the car, “That is all I could do.” In the first place, the admission of expert testimony is largely within the discretion of the trial court. — Ala. Con-sol. C. & I. Co. v. Heald, 168 Ala. 627, 53 South. 162; Stewart v. Sloss-Sheffield Steel & I. Co., 170 Ala. 550, — 156 — 54 South. 48: The witness had merely testified that he had been running a car for about two months, and there was no evidence as to his expertness. In addition, the material question was not, what the particular motorman could do, but what a skillful one, similarly situated, could have done. — Brown v. St. Louis & San Francisco R. R. Co., 171 Ala. 310, 55 South. 109; L. & N. R. R. Co. v. Young, 168 Ala. 564, 53 South. 213; B. R., L. & P. Co. v. Morris, 163 Ala. 308, 209, 50 South. 198. There was no error in permitting the motorman to illustrate, with his hands, the time it would take him to go through the various motions necessary to reverse the lever, etc., in order to stop or check up the car. Being an expert, and familiar with the amount of resistance usually met with in performing these services, it seems that he would automatically make the motions in about the time usually employed. But, however that may apply, the illustration would present to the jury a better idea of what was to be done than could be explained by mere words; and if counsel was of opinion that it would take more time, by reason of the resistance of the levers, that could be brought out on cross-examination, and the jury could judge of it and give such weight'to the illustration as they thought proper, This bears no analogy to the case of Birmingham Railway, Light & Power Co. v. Hayes, 153 Ala. 186, 44 South. 1032, in which the answer was the mere solving of a mathematical proposition, which the court said the jury could work out as well as the witness; nor to the case of Tesney v. State, 77 Ala. 38, in which “a separate and distinct experiment” was made by firing at a coat; nor to the Burgess Case, 114 Ala. 596, 22 South. 169, where, also, a separate and distinct experiment was made by placing children in the supposed position — 157 — of the injured, in order to determine whether they could be seen at a certain distance; nor to the Collier Case, 112 Ala. 682, 14 South. 327, where an experiment was also sought to be made by pouring a liquid fire extinguisher on cloth, so as to determine what injury could be done to clothing by the explosion of a bottle containing the extinguisher. To the question to the motorman, on cross-examination, “You wanted to make town as soon as you could?” the defendant objected, but stated no ground of objection. The court was not bound to cast about for grounds to sustain the objection, and consequently cannot be placed in error for overruling the same. — Dryer v. Lewis, 57 Ala. 554, 555; B. R., L. & P. Co. v. Landrum, 153 Ala. 200, 45 South. 198, 127 Am. St. Rep. 25; L. & N. R. R. Co. v. Seale, 172 Ala. 480, 55 South 238. The witness Ensey, having testified that he was instructed in the duties of motorman by Mr. Walker, who had previously testified to the same fact, was asked: “What did Mr. Walker tell you was the most effective way to stop a car in emergency?” “The defendant objected to said question, on the ground that it called for illegal, irrelevant, and immaterial testimony.” The objection was overruled, and the witness answered: “Well, reversing was the quickest way.” No motion was made to exclude the answer. It is now insisted that the ruling was erroneous, because the question “does not hypothesize facts in issue, does not limit the car referred to to the character of car alleged to have struck plaintiff’s intestate,” and because Walker had not been questioned about the matter. The broad grounds of illegality and immateriality do not cover the objections insisted on; and, where a party states particular grounds of objection, he waives all — 158 — others. — Southern Railway Co. v. Gullatt, 158 Ala. 507, 48 South. 472; Garrett v. Trabue, Davis & Co., 82 Ala. 232, 3 South. 149; St. L. & S. F. R. R. Co. v. Savage, 163 Ala. 58, 50 South. 113; Broyles v. Central of Georgia Ry. Co., 166 Ala. 627, 52 South. 81 139 Am. St. Rep. 50. The answer not being responsive to the question, and there béing no motion to exclude the answer, the court could not be put in error for its ruling. — Sloss-Sheffield Steel & I. Co. v. Sharp, 156 Ala. 284, 289, 47 South. 279; Broyles v. Central, etc., Co., supra. For these reasons, there was no error in overruling said objection. The so-called question: “Suppose, Mr. Ensey, there was a man on the track, and you wanted to stop the car or slacken its speed as quick as possible, in order to save his life?” — does not really contain any question at all. Whether the question was interrupted before it was finished, or what question was intended to be asked, we cannot tell. However, no motion was made to exclude the answer, and the court cannot be put in error. — Authorities, supra. The witnesses for plaintiff, in rebuttal, had stated what Walker’s instructions were to them, and particularly that said Walker had instructed them that reversing the lever was the best and quickest way to stop or check a car. After the plaintiff had closed his testimony in rebuttal, the defendant proposed to examine said Walker as to what instructions he had given witnesses on this subject, and the court refused to admit the testimony. It is true that after the testimony has been closed it is a matter within the sound discretion of the trial judge whether or not to reopen the testimony (Chandler Bros. v. Higgins, 156 Ala. 516, 47 South. 284); and it is also true that after the plaintiff has closed — 159 — his testimony in rebuttal it is within the discretion of the court whether or not to allow surrebuttal testimony as to matters which might have been inquired into before (So. Industrial Institute v. Hellier, 142 Ala. 688, 39 South. 163) ; but where, as in this case, testimony is brought out on rebuttal, as to facts which could not have been testified to before, by defendant’s witness, we think justice requires that the defendant should be allowed, in surrebuttal, to contradict the same. Walker could not legally have testified before as to what instructions he had given the witnesses; but he having testified as to the best and quickest way to stop or check a car or cars, conditioned as these were, and the evidence in rebuttal having a tendency to impeach his testimony by showing that his instructions were contrary to his testimony, he should have been allowed to either contradict or explain said statements. This was not, as counsel for appellee thinks, seeking merely “a contradiction of Ensey’s contradiction of Walker’s previous testimony,” because Walker had not testified on that subject; but it was the introduction of new matter, tending to throw a cloud over Walker’s testimony. The court erred in not admitting said testimony. There was no error in that part of the court’s oral charge excepted to. — L. & N. R. R. Co. v. Holland, 173 Ala. 675, 55 South. 1001; Brown v. St. L. & S. F. R. R. Co., 171 Ala. 310, 55 South. 108; L. & N. R. R. Co. v. Young, 168 Ala. 564, 53 South. 213. The court erred in refusing to give the general charge in regard to the second count of the complaint, as there was no evidence to justify a finding that the injury was caused by the willful, wanton, or intentional act of the servants of the defendant. As to this point, all of the justices concur, except Dowdebb, C. J., and Sayre, J., who think it was a matter for the jury to consider. — 160 — There was no error in refusing to give the general charge as to the third count of the complaint, as it was a question for the jury whether or not there was simple subsequent negligence. — N., C. & St. L. Ry. v. Harris, 142 Ala. 252, 243, 37 South. 794, 110 Am. St. Rep. 29. As to this point, Dowdell, C. J., and Anderson and Sayre, JJ., concur; but McClellan, Mayfield, and Somerville, JJ., dissent, holding that the general charge should be given as to said third count. Charge 5, requested by the defendant, was properly refused, as it assumes that reversing was the best way' to stop the car quickly, on which point the evidence is in conflict. Charge 6 expresses the law, and the court erred in refusing to give it. If the jury must be reasonably satisfied, it necessarily follows that, if their “minds are left in a state of confusion as to whether or not plaintiff should recover,” they cannot find for the plaintiff. —L. & N. R. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 99, 103, 104, 27 South, 760; Calhoun v. Hannan & Michael, 87 Ala. 277, 285, 6 South. 291. In the Galhoun Case, 87 Ala. 285, 6 South. 292, supra, a charge that, “if the evidence leaves them confused or uncertain as to the truth or falsity of such charge, they must find for the defendant,” was sustained; the court saying: “Manifestly, if their minds are left in a state of confusion and uncertainty on this point, the plaintiff has failed to make out this very essential part of his case, and cannot recover.” In the Sullivan Timber Co. Case, supra, the trouble with the charge was that it exacted too high a degree of proof in requiring the jury to be “satisfied,” in place of “reasonably satisfied,” and the question was whether the addition of the words “uncertainty, confusion, and doubt” cured that infirmity; and it was held that they — 161 — did not, evidently because no words could extract tbe defect in the previous part of tbe charge; and tbe court states, referring to tbe Hill Case and tbe Brown-Master (Jase, that, if tbe words “confused or uncertain” bad been connected by an “and,” “they would-not bave vitiated tbe charge.” In tbe case of Alabama Great Southern Railroad Co. v. Hill, 93 Ala. 514, 526, 527, 9 South. 722, 30 Am. St. Rep. 65, the trouble was that tbe charge required tbe jury’s minds to be absolutely “certain” and free from all “doubt,” whether reasonable or otherwise; and tbe statement quoted from tbe Calhoun Case is approved. In tbe case of Brown v. Master, 104 Ala. 464, 16 South. 443, there was tbe same vice, to wit, tbe requiring of absolute certainty. Charge 7, requested, by tbe defendant, was covered by charge 19, given on request of defendant, and no error can be predicated on its refusal. There was no error in refusing to give charge 10, requested by tbe defendant. Tbe intestate’s actions and appearance may bave been such as to manifest bis intention of crossing the track, before be came in actual range of tbe car. — B. R., L. & P. Co. v. Hayes, 153 Ala. 178, 181, 183, 44 South. 1032; Burson v. L. & H. R. R. Co., 116 Ala. 198, 22 South. 457. Charge 11, requested by tbe defendant, was substantially covered by charge 6, given at tbe request of tbe defendant, and, in addition, it fails to hypothesize tbe use of tbe means “promptly.” There was no error in its refusal. There was no error in tbe refusing to give charge 12. Tbe word “even” carries an intimation against tbe supposition. — Manistee Mill Co. v. Hobdy, 165 Ala. 411-418, 51 South. 871, 138 Am. St. Rep. 73. Besides, it — 162 — is not stated at what distance the intestate was, when seen running. The court erred in refusing to give charge 13, at the request of defendant. The same is true as to refusing the fourteenth charge. The court committed no error in overruling the demurrers to counts 2 and 3 of the complaint as amended. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. All the Justices concur in the opinion, except as to the points noted in the opinion, in which dissent is expressed.