Kansas City, Memphis & Birmingham Railroad v. Crocker

95 Ala. 412

Opinions

’WALKEE, J.

No demurrer was interposed to the complaint. The defendant moved to arrest judgment on the verdict rendered by the jury. This motion was predicated upon the ground that the complaint did not show any cause of action, and would not support tbe judgment. Tbe motion was properly overruled, if tbe complaint contained a substantial cause of action. — Code of 1886, § 2835. In support of tbe motion it is urged, tbat tbe complaint does not allege a cause of action against tbe defendant as tbe employer of tbe plaintiff, unless tbe averments thereof sbow tbat tbe injury complained of was caused by reason of sucb negligence as is specified in subdivision 5 of section 2590 of tbe Code of 1886; and tbat, in imputing tbe injury to tbe negligence of a person in tbe service or employment of tbe defendant wbo bad charge or control of “a car propelled by band, called a lever-car,” tbe complaint does not sbow that sucb person bad charge or control of a “car” within tbe meaning of tbat word as used in tbe statute.

Sub-division 5' of section 2590 of the Code is in these words: “When sucb injury is caused by reason of tbe negligence of any person in tbe service or employment of tbe master or employer, wbo has tbe charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway.” In tbe corresponding sub-division of tbe original act, upon which this section of the Code is founded, tbe language is, “by reason of tbe negligence of any person in tbe service of tbe employer, wbo has tbe charge or control of any signal, switch, engine, or train upon a railway, or any part of tbe track thereof.” — Acts of' Ala. 1884-85, p. 115. It thus appears that tbe words “points,” “locomotive” and “car,” were introduced by tbe codifiers. A result of tbe change is to enable an employe to maintain an action against bis employer, for an injury caused by reason of tbe negligence of any person in tbe service or employment of tbe master or employer wbo has tbe charge or control of any car upon a railway. It is argued tbat, as tbe word “car” is used in connection with tbe words “locomotive,” “engine” and “train,” it was intended to mean a vehicle used on a railway for tbe transportation of passengers or freight, which is propelled by a locomotive or engine, and forms a part of a train. It is true, tbat in determining tbe true sense of a word which has a variety of meanings, regard should be had to tbe other words with which it is associated, and to tbe subject-matter in relation to which it is used. As tbe clause of the statute which is under consideration has reference to injuries received in railway service, it seems plain that the word “car,” as here used, does not include such vehicles moved on wheels as are not used on railways, though there are sucb vehicles which may properly be called cars. It is not difficult to select from tbe several definitions of tbe word “car,” as found in tbe dictionaries, one wbicb is applicable to tbe word as used in tbe statute. Tbe Century Dictionary gives tbis, among other definitions : “a vehicle running upon rails.” One of Webster’s definitions is : “a vehicle adapted to tbe rails of a railroad.” "We find nothing in tbe language of tbe statute to suggest that tbe word as there used was intended to convey a meaning wbicb excludes tbe idea of a band or lever-car. Such cars are used in tbe ordinary business of railroads. Employes who ride upon them, or who are in tbe discharge of duties on or near to tracks over wbicb they are propelled, are liable to be injured in consequence of tbe negligent handling of them. It is plain that subdivision 5 of tbe statute covers tbe case of an injury caused by reason of tbe negligence of a co-employe who has tbe charge or control of a car, though such car is at tbe time in no way connected with an engine, and is not a part of a train. Tbe negligent handling of a detached passenger or freight-car may cause an injury wbicb is actionable under tbe statute. It is not necessary that tbe car be connected in any way with a locomotive, or with other cars forming a train. íf tbe car is adapted to tbe rails of a railroad, and is used in tbe business of railroads, we think that it is none tbe less within tbe meaning of the word as used in tbe statute because it is made to be propelled by band. Tbe motion in arrest of judgment was properly overruled.

2. Tbe complaint attributes tbe injury complained of to tbe negligence of tbe foreman in applying tbe brake without warning while tbe car was being propelled at a rapid rate of speed, and thereby suddenly checking its speed and causing the plaintiff to be violently thrown off, in front of tbe moving car, so that it ran against and over him. Evidence tending to show tbe speed of tbe car was competent in support of tbe allegations of tbe complaint in that regard. On tbis subject tbe plaintiff stated: “I would think tbe lever-car was going at tbe rate of eight or ten miles an hour.” His counsel then asked him tbis question: “About bow fast, compared to a man running?” Tbe defendant’s objection to the question having been overruled, tbe witness answered: “Well, sir, it was running faster than a man could run.” Tbe defendant’s motion to exclude tbe answer was also overruled. It is often impossible for tbe appearance wbicb was presented by a moving object to be conveyed to tbe minds of tbe jury so clearly that they could form a satisfactory conclusion as to its velocity, without tbe aid of .the opinions of eye-witnesses. Conclusions upon such a question as tbe speed, of a moving vebicle are necessarily, in most instances, based 'upon tbe opinions of persons who observed it. Because no better evidence can ordinarily be obtained, or tbe facts can not otherwise be presented to tbe jury, tbe law admits tbe opinion of ordinary witnesses,- derived- from observation, as evidence on tbe question of tbe speed at wbiclr an object was moving at a certain time. Sucb opinions may often be no more definite tban tliat tbe object in question was moving at a greater or less rate of speed tban other familiar objects which tbe witness bad been accustomed to observe in motion. That tbe witness is unable to state that tbe object in question was moving at tbe rate of a certain number of miles in an hour would not necessarily render bis opinion useless as an aid to tbe jury. Assistance in coming to a conclusion on sucb a question may be derived from a statement that tbe object was going slowly, or at a snail’s pace, or no faster tban a man walks, or faster tban a man could run. Tbe opinions are admitted to enable tbe jury to realize, as far as possible, tbe impression as to speed made by tbe moving object upon tbe mind of one wbo saw it. It would be more satisfactory if tbe admissibility of sucb opinions could be made to depend upon their conformity to some definite standard of clearness or accuracy in their formation and expression. It is not practicable, however, to fix any sucb standard. Tbe vagueness of tbe opinion would only go to tbe weight of tbe testimony, and not to its admissibility. As tbe statement made by the plaintiff in answer to the question above referred to was admissible as tbe expression of bis opinion based upon observation, we do not think that opinion should have been excluded because it was not more definite; and as tbe question did not elicit incompetent evidence, no injury resulted to tbe defendant in consequence of its allowance. — Lawson on Opinion and Expert Evidence, pp. 460-462—465; Evansville & T. H. R. R. Co. v. Grist, 116 Ind. 446; s. c., 9 Amer. St. Rep. 865, and notes; Gugenhein v. Lake Shore & M. S. R. Co., 32 Am. & Eng. R. Cases, 89.

3. There was no evidence tending to show that any one on tbe lever-car beard an extra train coming, or that a train was in fact approaching from either direction when tbe brake was applied by the foreman. Tbe inquiry as to what tbe section-foreman and tbe section-bands should do with a lever-car on which they are riding, when they bear a train coming, could not tend to throw any light on tbe question of the foreman’s duty in tbe circumstances shown by the proof. It could only tend to divert the minds of the jury to lay before them evidence to show what would have been the duty of the men on the car under an imaginary state of circumstances, different from that developed by the- proof in the case on trial.. The objection to the question calling for such evidence was properly sustained.

4. The question in reference to the danger incurred by one who fails to hold on to anj'thing while standing on a moving lever-car called for evidence which, in connection with the other proof in the case, would have tended to show that the' plaintiff was negligent in that regard. Contributory negligence is in its nature defensive, and the burden of proof to show it is upon the party who relies upon it. The pleas interposed by the defendant in this case did not go beyond a traverse of the allegations of the complaint. If contributory negligence on the part of the plaintiff was relied upon as matter of defense, it should have been specially pleaded. A denial of the charge of negligence made against the defendant in no way involves the averment of negligence on the part of the plaintiff. The defendant’s pleas did not present any issue of contributory negligence.— Thompson v. Duncan, 76 Ala. 334; Mobile & Montgomery Ry. Co. v. Crenshaw, 65 Ala. 566; Louisville & Nashville R. Co. v. Hall, 87 Ala. 708; North Birmingham S. Ry. Co. v. Calderwood, 89 Ala. 247; Beach on Contributory Negligence, § 157. It is proper to exclude evidence which is pertinent only to an issue which is not presented by the pleadings. For this reason, the objections to the questions as to the plaintiff’s negligence in letting go the handle of the lever-car were properly sustained.

5. The question propounded by the counsel for the defendant to the witness West on his direct examination, to which an objection was sustained, was so framed as to suggest the answer desired. The witness had just stated that he never ran on a curve without stopping to ascertain whether any trains were coming. To ash him, immediately after this statement, if it was his duty to make such a stop or not, was well calculated to indicate to him what answer was expected. The court was justified in sustaining the objection to the question, because of its leading character under the circumstances.

6. It is true that it is the duty of the jury to weigh the evidence, and not merely to count the witnesses introduced by the respective parties. We are unable to perceive how any injury could have resulted to tbe defendant from tbe giving of tbe charge to this effect.

7. It was shown without contradiction that, when tbe brake was applied, tbe plaintiff was standing in tbe front end of tbe car, facing in tbe direction from which tbe car was coming, and that be was assisting in working tbe handle of tbe lever on that end of tbe car; that in the position be was in there was nothing be could bold to but tbe handle of tbe lever. There was evidence tending to show that, when tbe lever-car was under good headway tbe men working tbe lever would at times turn it loose without bolding on to anything else; and that, on tbe occasion in question, tbe plaintiff in assisting to work tbe lever would let go tbe handle as be pushed it down. There was evidence to support a finding that West knew that tbe persons operating the band-car were at times in tbe habit of turning-loose tbe lever, when tbe car was running down grade. If with this knowledge, and at a place where they were not accustomed to stop, be applied tbe brake so as to check with unnecessary and dangerous suddenness tbe speed of tbe car when it was running down grade, without notice to tbe persons operating tbe same, and without looking to see that such persons were bolding to tbe lever, tbe inference of negligence from such conduct is clear and certain. Tbe sudden checking of tbe car without notice necessarily involved tbe danger of a fall to a person who was standing upon it without support. If the state of facts hypothesized in tbe second charge given at tbe request of tne plaintiff bad been submitted to tbe court as a special finding of tbe jury, tbe conclusion of negligence could have been pronounced as a matter of law. Tbe charge submitted tbe questions of fact for tbe determination of tbe jury from tbe evidence. There was no error in instructing them that, if they believed from tbe evidence that such was the state of facts, then tbe act of tbe foreman was negligent. — Louisville & Nashville R. Co. v. Perry, 87 Ala. 392; East Tenn. Va. & Ga. R. Co. v. Bayliss, 74 Ala. 150; City Council of Montgomery v. Wright, 72 Ala. 411.

8. As tbe defense of contributory negligence was not presented by tbe pleadings, no injury could have resulted to tbe defendant by tbe charge stating that “tbe court leaves it to tbe jury to say whether, under tbe evidence in this case, tbe plaintiff was guilty of contributory negligence.” This charge should have been refused; but the giving of it could work no injury to tbe defendant, as tbe effect was to allow tbe defendant tbe benefit of a defense which bad not been set up.

Charges 5, 7, 10, 11, 12,14,15, 16, 20, 22 and 23 requested b}r the defendant were instructions upon the question of the plaintiff’s contributory negligence. As that question was not presented by the pleadings, all of them were properly refused on that ground, without regard to other defects in several of them.

9. A proposition of the fourth charge requested by the defendant is, that if the jury can not say who has told the truth, then they must find the facts, so far as there is conflict, not proven in this case, and if such facts are necessary to be proved in order for plaintiff to recover, they must find for the defendant. A jury may not be satisfied that any one witness in the case has told the truth throughout his testimony, and yet they may be able, from a fair consideration of all the evidence before them, to arrive at a satisfactory conclusion in reference to the matter presented for their determination. They should not be instructed to make up an issue as to the testimony of each witness, and render a verdict as to its truth or falsity. In weighing all the evidence, it can not be said to be their duty to reject the entire testimony of a witness who has erred in some material particular. An untrue statement may be attributable to an honest mistake, and may be reconcilable with the absence of any intention to misrepresent the facts. If the jury can satisfactorily determine the issues of fact presented to them by weighing the evidence and sifting out the truth, their conclusion would not be vitiated because they could not say that the witnesses upon whose testimony their verdict is based have stated nothing but the truth of the matter as they have found it. The charge was properly refused.

10. Although there was no custom to give notice before applying the brake, yet it is plain that it might be applied to check the car in such a manner, and under such circumstances, that a failure to give notice would render the act negligent and unnecessarily perilous to other persons on the car. There was evidence tending to show that the foreman applied the brake so as to check the car very suddenly, while it was in rapid motion, and at a place where it was unusual to make a stop. It was for the jury to say from the evidence whether the brake was applied in such a manner as to render the act negligent. Charges 6, 8, 9, and 21 requested by the defendant were properly refused, because they assert, in effect, that the absence of a custom on the subject would preclude the imputation of negligence to the act of the foreman in applying the brake without notice under any circumstances. Though, the jury were in doubt and uncertainty as to whether plaintiff’s injury was caused by his having received no notice of the intended application of the brake, yet they would not be justified in finding for defendant if they believed from the evidence that the injury to the plaintiff was caused by the negligence of the foreman in checking the speed of the car suddenly and without warning, as alleged in the complaint. If the injury could properly be imputed to the negligence alleged, it was not necessary that the jury should be able to affirm that it was caused solely by the failure to give warning, which was but one feature of the negligence charged. This consideration discloses the incorrectness of charge 18 requested by the defendant. Charge 19 was misleading and confusing in singling out an isolated feature of the negligence alleged, and was calculated to convey the impression that the injury must be attributable solely to the want of notice. The two charges last mentioned ignore facts other than those hypothetically stated which there was evidence tending to prove, and the existence of which would avoid the legal conclusions respectively stated.— White v. Craft, 91 Ala. 139.

As has been already indicated, there was evidence from which the jury would be authorized to find that the injury was caused by the checking of the car in an unusual ancl negligent way. Charge 13 requested by the defendant was properly refused, because it asserted that there was no such evidence.

The principal argument suggested in support of the correctness of charges 1, 2 and 3 requested by the defendant is the one which has already been considered and disposed of in the review of the action of the lower court in overruling the motion in arrest of judgment.

"We have discovered no reversible error in the record, and the judgment must be affirmed.