Alabama Great Southern Railroad v. Burgess

116 Ala. 509

• Court: Supreme Court of Alabama
• Decided: November 15, 1897
• Status: Published

Opinion

COLEMAN, J.

The complaint upon which the cause was finally submitted to' the jury contained four counts, numbered two, three, four and five. The second and fourth counts aver that the injury which caused the death of plaintiff’s intestate was willfully or wantonly inflicted. The third and fifth counts aver no more than simple negligence. W.e declared what constitutes willful injury, and its legal equivalent, wanton injury, in the cases of Ga. Pac. R. R. Co. v. Lee, 92 Ala. 262; K. C., M. & B. R. R. Co. v. Crocker, 95 Ala. 433; L. & N. R. R. Co. v. Markee, 103 Ala. 160; A. G. S. R. R. Co. v. Hall, 105 Ala. 599; L. & N. R. R. Co. v. Anchors, 114 Ala. 492; A. G. S. R. R. Co. v. Burgess, 114 Ala. 587. We think it unnecessary to do more than to cite these authorities.

The third and fifth counts would more clearly show simple negligence, if instead of averring* that such “care and diligence might have avoided her injury,” the pleader had charged ’that such care and diligence would have avoided the injury. The trial court proceeded on the assumption, that the third and fifth counts averred a willful and wanton injury. The definition of "wanton, willful or intentional negligence” given to the jury by the court in charges numbered six and seven, was not in accordance with the decisions we have cited, and was erroneous ; the phraseology of the seventh was calculated to mislead the jury in this respect. The correction of this error will enable the ' court to. avoid others on another trial.

A trial court is not required to give charges which have been given, and a mere immaterial variation of words does not change the rule.

Many of the rulings of the court assigned as error were disposed of in the cause of the A. G. S. R. R. Co. v. Burgess, recently decided (114 Ala. 587), the plaintiff having been injured at the same time and by the same cause which gave rise to the present action, and we need not repeat here what was there said.

Damages recoverable under section 2589 are entirely punitive and to prevent homicides. Evidence of loss of services, or mere pecuniary loss, and evidence of mental suffering on the part of the parents of the deceased child, are. immaterial and irrelevant. — Buckalew v. Tenn. Coal, Iron & R. R. Co., 112 Ala. 146; K. C., M. & B. R. R. Co. v. Sanders, 98 Ala. 293; Richmond & Danville R. R. Co. v. Freeman, 97 Ala. 289; Savannah & Memphis R. R. Co. v. Shearer, 58 Ala. 672.

The deceased was an infant about three years of age. If death had not resulted and the action had been brought by the infant, neither the contributory negligence of tiie infant, nor that of her parents, would have been available as a defense to the action. — Pratt Company v. Brawley, 83 Ala. 371; Government Street Railroad Co. v. Hanlon, 53 Ala. 70; M. & M. R. Co. v. Crenshaw, 65 Ala. 566. The rule is otherwise as to the contributory negligence of the parent where the action is brought under section 2588 by the parent to recover pecuniary compensation.— Williams v. S. & N. A. R. R. Co., 91 Ala. 635; A. G. S. R. R. Co. v. Dobbs, 101 Ala. 219.

That the plaintiff may have been guilty in exposing himself to danger can not be pleaded as a defense to a complaint which counts on the negligence of the defendant in not observing due care after the discovery of the peril of plaintiff. To such a complaint there must be subsequent contributory negligence. The plea of the general issue puts in issue the alleged negligence of such complaint.

For the errors noted, the case must be reversed and remanded.

Reversed and remanded.