HEAD, J. —
The leading facts of this case may be found in the report of the former appeal (107 Ala. 400). New questions upon the admission of evidence, and very many instructions given and refused, are predicated for assignments of error on the present appeal.
The cause of action, as stated in the first count of the complaint, was that Scott, section foreman and superintendent of road repairs, in the exercise of such superintendence, negligently ordered and directed plaintiff’s intestate and the other section hands to take the two lever cars over the river at once, and at a great rate of speed, and negligently stopped his car suddenly while it was in front of the other car, while both were going at a [531] high rate of speed, and without first ordering the rear car to. stop, or notifying those on it of his intention to stop the car he was on, causing the rear car to run into the front car, whereby plaintiff’s intestate was knocked off the rear car and killed.
That stated in the second count is, that Scott, the defendant’s section foreman, in charge of the two lever cars, the one running closely behind the other, at a high rate of speed, negligently stopped the front car suddenly, without notifying those on the car behind, by reason of which the rear car ran into the front car, whereby plaintiff’s intestate was knocked off the rear car and killed.
These allegations were put in issue by the general denial ; and the defendant further defended upon a plea of contributory negligence on the part of the intestate, the gravemen of which was that he failed to grasp or hold to the lever or handle of the car on which he was riding (the rear car), as it was his duty to do, but stood at the rear end of the car, and was negligently looking up and down the river over which the cars were passing, or was looking backward without holding on to any part of the car, or the handle thereof,. which was an unsafe and dangerous way of crossing said river and trestle on a moving hand-car. Issue was joined on this plea.
There was evidence tending to support both the complaint and pleas.
Smith Peoples, one of the section hands, on the car with the deceased, was permitted to testify that the place where the injury occurred — on the abutting trestle of a river bridge — was a dangereus place to stop. The defendant’s objection to the question calling out the testimony, was, that it was illegal, and called for incompetent, inadmissible and illegal testimony. The question called for the statement of a collective fact, and answer to it is not reversible error.
The section foreman, expert in the operation of handcars, was asked by the defendant to state whether or not the danger of riding on one of the hand-cars, while in motion, is obvious and patent to a man — whether any man of common sense would know that to be dangerous? A general objection to the question was sustained. We think there was no error in this ruling. It is common knowledge tliat danger attends riding on a moving handcar and that this danger is patent and obvious to a man [532] of common sense. If the witness had answered the question, affirmatively, the answer would have been declaratory merely of what the jury already knew.
There was no reversible error in allowing the question to be asked the foreman by the plaintiff; ‘ ‘Is it always necessary when four of the hands are on the lever car for all four hands to have hold of the handles, all the time, in order to propel the car at a safe rate of speed?” for the reason, if no other, that the answer of the witness was, “Yes, .they should hold to it.” The answer was favorable to the defendant.
Witness, Guy, one of the section hands, was asked by defendant, how a person operating the car should grasp the handle? The court sustained an objection to the question, but it is shown that the witness, immediately, without objection, explained fully how the handle should be grasped, rendering harmless the error, if any, in the court’s ruling.
The evidence was circumstantial as to what proportion of the earnings of deceased were consumed in his own support, and hence what amount of pecuniary benefit the dependent next of kin enjoyed from such earnings. As. a circumstance, aiding the solution of this question, it was competent to show how many and what dependents there were, and their ages. Particularly, in view of the cautionary instructions given the jury by the court, in reference to this proof, there was no error in the ruling. The authorities hereafter cited, touching the measure of damages, make a distinction between cases where the entire earnings are consumed in the support of the family and where a portion only is so consumed, leaving a surplus for accumulation, though it seems that in cases where there are 'dependent families, who are distributees, enjoying support from the earnings, and also surplus accumulations, the plaintiff, administrator, is not confined in his recovery to the amount of injury sustained by the loss of their support, but may recover the entire present value of the accumulations, as well. The present record raises no question calling for any further explanation of this distinction or how it operates, than is stated in Trammell’s Case, 93 Ala. 350, which gives the dependent family annual benefits. The writer’s own views are that under the statute, which gives the right of action to the administrator for [533] the benefit of all distributees alike, the measure of damages is the same in all cases, whether some or all of the distributees were dependent or not.
Free access — add to your briefcase to read the full text and ask questions with AI
HEAD, J. —
The leading facts of this case may be found in the report of the former appeal (107 Ala. 400). New questions upon the admission of evidence, and very many instructions given and refused, are predicated for assignments of error on the present appeal.
The cause of action, as stated in the first count of the complaint, was that Scott, section foreman and superintendent of road repairs, in the exercise of such superintendence, negligently ordered and directed plaintiff’s intestate and the other section hands to take the two lever cars over the river at once, and at a great rate of speed, and negligently stopped his car suddenly while it was in front of the other car, while both were going at a [531] high rate of speed, and without first ordering the rear car to. stop, or notifying those on it of his intention to stop the car he was on, causing the rear car to run into the front car, whereby plaintiff’s intestate was knocked off the rear car and killed.
That stated in the second count is, that Scott, the defendant’s section foreman, in charge of the two lever cars, the one running closely behind the other, at a high rate of speed, negligently stopped the front car suddenly, without notifying those on the car behind, by reason of which the rear car ran into the front car, whereby plaintiff’s intestate was knocked off the rear car and killed.
These allegations were put in issue by the general denial ; and the defendant further defended upon a plea of contributory negligence on the part of the intestate, the gravemen of which was that he failed to grasp or hold to the lever or handle of the car on which he was riding (the rear car), as it was his duty to do, but stood at the rear end of the car, and was negligently looking up and down the river over which the cars were passing, or was looking backward without holding on to any part of the car, or the handle thereof,. which was an unsafe and dangerous way of crossing said river and trestle on a moving hand-car. Issue was joined on this plea.
There was evidence tending to support both the complaint and pleas.
Smith Peoples, one of the section hands, on the car with the deceased, was permitted to testify that the place where the injury occurred — on the abutting trestle of a river bridge — was a dangereus place to stop. The defendant’s objection to the question calling out the testimony, was, that it was illegal, and called for incompetent, inadmissible and illegal testimony. The question called for the statement of a collective fact, and answer to it is not reversible error.
The section foreman, expert in the operation of handcars, was asked by the defendant to state whether or not the danger of riding on one of the hand-cars, while in motion, is obvious and patent to a man — whether any man of common sense would know that to be dangerous? A general objection to the question was sustained. We think there was no error in this ruling. It is common knowledge tliat danger attends riding on a moving handcar and that this danger is patent and obvious to a man [532] of common sense. If the witness had answered the question, affirmatively, the answer would have been declaratory merely of what the jury already knew.
There was no reversible error in allowing the question to be asked the foreman by the plaintiff; ‘ ‘Is it always necessary when four of the hands are on the lever car for all four hands to have hold of the handles, all the time, in order to propel the car at a safe rate of speed?” for the reason, if no other, that the answer of the witness was, “Yes, .they should hold to it.” The answer was favorable to the defendant.
Witness, Guy, one of the section hands, was asked by defendant, how a person operating the car should grasp the handle? The court sustained an objection to the question, but it is shown that the witness, immediately, without objection, explained fully how the handle should be grasped, rendering harmless the error, if any, in the court’s ruling.
The evidence was circumstantial as to what proportion of the earnings of deceased were consumed in his own support, and hence what amount of pecuniary benefit the dependent next of kin enjoyed from such earnings. As. a circumstance, aiding the solution of this question, it was competent to show how many and what dependents there were, and their ages. Particularly, in view of the cautionary instructions given the jury by the court, in reference to this proof, there was no error in the ruling. The authorities hereafter cited, touching the measure of damages, make a distinction between cases where the entire earnings are consumed in the support of the family and where a portion only is so consumed, leaving a surplus for accumulation, though it seems that in cases where there are 'dependent families, who are distributees, enjoying support from the earnings, and also surplus accumulations, the plaintiff, administrator, is not confined in his recovery to the amount of injury sustained by the loss of their support, but may recover the entire present value of the accumulations, as well. The present record raises no question calling for any further explanation of this distinction or how it operates, than is stated in Trammell’s Case, 93 Ala. 350, which gives the dependent family annual benefits. The writer’s own views are that under the statute, which gives the right of action to the administrator for [533] the benefit of all distributees alike, the measure of damages is the same in all cases, whether some or all of the distributees were dependent or not.
The court at the request of the plaintiff instructed the jury that if deceased was, at the time of his death, in good health and of sober habits, and was 48 years of age, his expectancy of life was as much as eighteen years. This charge was an invasion of the province of the jury. In assessing damages, in cases like this, it devolves upon •the jury, upon consideration of all the circumstances bearing upon the subject, as disclosed by the evidence, to ascertain what the duration of the party's natural life would have been. There is no method of ascertaining it, as a positive fact. The period fixed, in any case, is necessarily an inference drawn from many conditions and circumstances. In the same case, different minds of equal intelligence, might reach different conclusions. The tables of mortality, computed upon the experience of life insurance companies, which, being of such universal recognition, courts will judically notice, are not conclusive that the life expectancy of any particular person, though in good health and .of sober habits, should be declared to be the period they estimate. It may be stated as a fact generally known that in the system of insurance many conditions enter, as factors, in the determination of the hazards and duration of a person’s life. Though good health and sober habits, at the time, prevail, there may be other physical infirmities creating extraordinary hazard; such, for instance, as heritable diseases in ancestors, undue relation of height to weight, and the like. Again, the occupation the party pursues is of weighty consideration — whether or not involving extraordinary risk and danger. These may all be matters of evidence before the jury, in a given case, and it is for that body 'to draw the proper inference as to the real duration of the party’s natural life. In the present case, not only the age, good health and sober habits of the deceased were shown in evidence, but he was pursuing an occupation attended with unusual dangers. The charge was bad, in that it withdrew that fact from the consideration of the -jury, as well as, because it made the court to draw the inference which it was alone the province of the jury to draw.
When the case was formerly before us, we held that [534] the two charges requested by the plaintiff and numbered 8 and 9 in the present record, ought to have been given. On the trial from which this appeal comes, a question was prominently raised by evidence and is now argued before us, whether or not the deceased, though he may have had hold of the lever or handle, held it with the firmness and care which was reasonably necessary to his safety. The plea, it will be remembered, on both trials, specially, made no complaint of the manner in which the lever was grasped. Its sole complaint was, that deceased did not grasp it at all, but stood at the rear end of the car and was negligently looking up and down the river, over which the cars were passing, or looking backward without holding on to any part of the car or the handle thereof.; and there was a special replication, on which issue was joined, which alleged that he was holding to the handles of the car, and continued to so hold until he was knocked loose by the sudden putting on of the brake, &c., without saying anything as to the firmness or careful manner of the grasp. The charges referred to do not submit this question, as to the manner of the grasp, to the jury, but are so framed as to instruct, that legal requirements, on that point, were satisfied, if deceased had the handles of the lever in his hands. We will not now determine whether the plea and replication, and the evidence adduced on the last trial, legally raise the question. It may be that they do. It will be safer, on another trial, to so frame the instructions as to submit the question to the jury.
The foregoing remarks apply alike to charges 1 and 2 given for the plaintiff.
The measure of damages, in cases of this character, viz., where the next of kin were dependents and all earnings were consumed in the support of the family, will be understood by consulting the following authorities : L. & N. R. R. Co. v. Trammell, 93 Ala. 350 ; McAdory v. L. & N. R. R. Co., 94 Ala. 272 ; Bromley v. B. M. R. R. Co., 95 Ala. 397; L. & N. R. R. Co. v. Markee, 103 Ala. 160; A. G. S. R. R. Co. v. Hall, 105 Ala. 599. Charge 4 given for the plaintiff seems to come within the rule, except that it omits, in one of its alternatives, to confine the recovery to the present pecuniary value, &c. It authorizes the recovery of the “present cash, value, or the pecuniary’value,” &c.
[535] The defendant can not complain of the basis of computation authorized by charge 6, given for the plaintiff.
Though charges 7 and 11 given for plaintiff, might have been properly refused, there was no error in giving them.
Counsel do not insist, in argument, upon the error assigned upon the giving of charge 3 for the plaintiff. We notice, however, that the clause therein, “and that said'John Jones was thrown out of said rear car and killed,” should have inserted therein before the word, “thrown,” the word “thereby,” or some change made of similar effect.
The allegations of the first count of the complaint requires proof that the foreman, Scott, stopped his car suddenly while it was in front of the other car, while both cars were going at a high rate of speed, either without first ordering the rear car to stop; or without notifying those on it of his intention to stop ■ the car he was on. Both these alternatives are not required to be proven. The second charge requested by the defendant requires proof of the second alternative, though the first might have been proven. It was properly refused. The third charge requires proof of both alternatives, and hence is bad.
If the defendant’s fourth charge meets one of the above mentioned alternatives, it does not the other. Nor does it meet the averment of the second count. It was properly refused.
It was a question for the j ury whether or not it was negligent for Scott to. run two hand-cars at the same time in the manner in which these cars are shown to have been run across the bridge. The defendant’s fifth charge was, therefore, properly refused.
If the injury-was caused by the sudden putting on of the brake by John Guy, we cannot say, as a matter of law, that the act of Guy was negligent or wrongful and was not rendered reasonably necessary by the negligence of the foreman. That question was for the jury. The sixth charge was, therefore, properly refused. The same as to charge 7. Charge 8 states an incorrect measure of proof. Nor are we able to declare as matter of law, as charge 10 does, that it was negligent in deceased to have hold of the handle with one hand only. Charge 12 singles out a particular fact for the special attention [536] of the jury, which justified its refusal. Charges 14, 15 and 18 invaded the province of the jury.
Charge 19 ignores the question whether the order or signal given by the foreman, under all the circumstances, involved negligence on his part. So, charge 20 ignores the question whether the acts of John Woods therein stated were superinduced by a negligent order of the foreman.
We think it can not be stated, as a legal proposition, that if the foreman gave the signal for both the cars to check their speed at the same time, and that it was known by those on the rear car, and that Guy properly applied the brake in the usual and customary way, there was, necessarily, no negligence upon which a recovery for plaintiff might be based. Whether these facts, in view of other circumstances, involve sufficient notification to those on the rear car, of the intention to stop, within the meaning of the second count of the complaint, and whether there was no negligence in the fact of giving such a signal, under such circumstances, were for the jury to determine. Charge-24 was, therefore, properly refused. ■
Charges 25 and 26 as well as the general charge were obviously improper.
Reversed and remanded.