Birmingham Ry. L. & P. Co. v. Randle

43 So. 355, 149 Ala. 539, 1907 Ala. LEXIS 305

• Court: Supreme Court of Alabama
• Decided: March 2, 1907
• Status: Published

Opinion

DOWDELL, J. —

The cbmplaiint as originally filed contained three counts. The first count was subsequently withdrawn,, and the third count amended. The second count counted on simple negligence, and was in case, while the third count, as amended, was in trespass. This count charged that “The defendant wantonly, willfully, or iu tentionally ran its car or cars against and over the plaintiff’s decedent at said time and place killing the decedent,” etc. The damnifying act is alleged to have been the act. of the defendant corporation, and not of the servant or agent. We. are unable to diaw any distinction in principle between this case, in so far as the third count of the complaint is concerned, and the case of City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389, which latter case has been followed in Birmingham Son. R. R. v. Gunn, 141 Ala. 372, 37 South. 329 Sou. Ry Co. v. Yancey, 141 Ala. 246, 37 South. 341, and C. of G. R. R. v. Freeman, 140 Ala. 581, 37 South. 387.

It is insisted by counsel for appellant that.the same doctrine should-apply to the second count of the complaint, in which the negligence averred is charged to have been the negligence of the defendant,, and not of its agent or seivant. We cannot assent to this contention. There is that difference between the averments of the second count and third count as amended that there is between an affirmative act and a failure to act. •Willfulness or intention can in no sense obtain in an act of negligence. In law, the principal is always responsible for the negligence of his agent, and in a sense the negligence1 of the agent is the negligence of the principal. The averment of negligence of the principal may therefore be sustained by evidence of the negligence of his agent. To show that the principal participated in the negligent act of its agent, by directing the agent to do or perform said act, would be to change it from negligence to intention or willfulness. There was a total absence of evidence showing, (or. tending to show, that the defendant corporation participated in any manner or form in the damnifying act, or any subsequent ratification thereof, and it therefore follows, from what we have said aborde, that the written charges given at the instance of the plaintiff, which were predicated upon wantonness, should have been refused.

Charge 11, requested by the defendant, should have been given. We find no error in the refusal of the .several other written charges requested by the defendant.

The witness Clayton was shown by the evidence to have possessed that degree of experience and knowledge in the operation and running of cars which would qualify him to testify as an expert to the distance in which a car could be stopped running at the speed of the car in question, and it was not error to allow him, against the objection of the defendant, to- give his opinion on the question. There was no error in admitting the' evidence of the witness J. N. Loggin, relative to the distance from whefe witness last saw the deceased on the track to where the car struck him. There was no error in the exclusion of the statement by the witness Ed Robinson that the motorman “.seemed to try to stop the car as quick as he could.” This was but an opinion or conclusion of the witness, and he should have been required to state the facts as to Avhat the motorman did after Avitness suav him put his.feet on the bell and his hand on the brake in order to stop the car.

It was competent for the Avitness Duffey, defendant’s motorman, after having testified that Avhen he first saw the deceased he Avas Avalking in a path by the side of the track about two or three feet from the street car track, to have further testified Avhether or not the car Avould have struck him in passing him at that distance from the track. The same may be said as to the statement contained in the showing made for the absent Avitness James C. Loggin. Motorman Duffey was asked the question: “Tell the jury AArhether or not you stopped the car as soon as you could?” The court sustained an objection by the plaintiff to this question. The witness should have been required to state the facts as to what he did in order to stop the car, and, after having so stated these facts, it would have then been proper to have further inquired of him as to whether what he did was all that could have been done to stop the car as soon as possible

The rule is well established in this court that a non-expert must state the facts upon which he bases his opinion in testifying as to insanity — Ragland v. State, 125 Ala. 12, 27 South. 983; Burney v. Torrey, 100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33; Parrish v. State, 139 Ala. 16, 36 South. 1012.

For the error pointed out, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Weakley, C. J., and Tyson and Simpson, JJ., concur.