Kansas City, Memphis & Birmingham Railway Co. v. Matthews

142 Ala. 298

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

McCLELLAN, C. J.

The only caption of the complaint was that under Avhich the original counts Avere Avritten. To these several other counts were added but without further statement of the caption. This caption is as follows: “Mrs. Florence MattheAvs, Administratrix of the estate of Walter H. Matthews, deceased, versus The Kansas City, Memphis and Birmingham Railroad Company, a corporation.” There were six counts in the complaint as originally filed. In the first, fifth and sixth counts, the capacity in which plaintiff sues is thus stated: “The plaintiff, as administratrix of the estate of Walter MattheAvs,” etc., etc. In the second, third and fourth counts the capacity is shown by this averment: “The" plaintiff as aforesaid (i. e. as such administrator) claims” of the defendant, etc., etc. Thus the complaint stood undoubtedly as a suit by Mrs. Matthews in her capacity as administratrix of the estate of Walter H. MattheAvs, deceased, when she as such plaintiff asked leave to amend the complaint by adding thereto count 7. Upon this request the court’s order is this: “Florence MattheAvs, ais administratrix. of W. H. Matthews, deceased, v. Kansas City, M. & B. R. R. Co., February 5th, 1901. Damages. Leave granted plaintiff to file additional count No. 7 submitted on demurrers, and continued.” This amendment to the complaint is in the folloAAdng language: “7th count. The plaintiff claims of the defendant the further sum of thirty thousand dollars damages, for that Avhereas, on, to-wit: the 10th day of November, 1899, her intestate, the said Walter H. MattheAvs, was a passenger on the railroad of the defendant, which was railway corporation for the transportation of freight and passengers, on one of the passenger trains of defendant from Birmingham to Guin, Ala., the plaintiff alleges that on said date her intestate as such passenger was through and by the carelessness and negligence of the defendant’s servants, agents or employees, violently thrown, from the train, at or near said Guin, Alai., and so greatly injured, bruised, hurt and shocked by the injury thus sustained, that he never recovered therefrom, but soon thereafter died on account of the said injuries.” This count 7 thus became an integral part of a complaint Avhich in its other six counts affirmatively and directly shoAvecl that plaintiff was suing in her representative capacity. In that capacity she moved for leave to add this count and to her in that capacity leave was granted. This count, moreover, by its oavu terms shows in a way that the plaintiff is therein claiming damages in her representative capacity: It avers that “her intestate” was a passenger, etc., etc., and that ‘her intestate,’ was throAvn from the train, etc., etc. So long as other counts remained in the case, it was not suggested by defendant that this count was not filed and prosecuted by the plaintiff in her representative capacity. A demurrer was interposed to it, but thereby no objection was made for departure or in other respect upon any theory that it set forth a claim in the plaintiff’s individual capacity. No motion to strike it was made. But on the trial after some of the other counts had been eliminated on demurrer sustained, and the affirmative charge with hypothesis had been given for defendant as to all the rest except this count 7, the affirmative charge was requested against it also; and one of the arguments here made in support of the exception to the court’s refusal of that request is that the complaint — viz., this count 7 — claims damages for the plaintiff as an individual, while the proof, if it makes any case for recovery, shows a right of recovery in the plaintiff as administratrix only. The position is not tenable. Several of the counts which stood the attack of the demurrers but as to which the general charge Avas given for defendant, averred unequivocally that plaintiff sued as administratrix. Though charged against they were still in the case for all the purposes of showing plaintiff’s capacity. And upon this with the other considerations to which Ave have adverted,- we hold that in this' count 7, the plaintiff sues as the personal representative of Walter H. Matthews, deceased. — Lucas V. Pittman, 94 Ala. 616; Louisville & Nashville Railroad Company v. Tram'mell, 93 Ala. 350.

This count by its averment that the intestate was a passenger on defendant’s train shows a duty resting on defendant to safely carry him. It shows too that the defendant did not safely carry him. There was need to show but one thing else in the sufficient statement of a cause of action. That thing was that the failure to carry him safely was due to the negligence of defendant’s servants. It is immaterial who the negligent servants were or what their particular stations or duties in the service were. The intestate having been injured by the negligence of a servant of the defendant, according to the averment, it is all the same as respects the rights of intestate’s estate and the liability of the defendant whether the negligent servant was a trainman, or a trackman, or a station man, or what not. The negligent act of a servant of the carrier whereby a passenger is thrown from the carrying train and injured is necessarily an act m and about and having a bearing (very decided indeed) upon the carriage- of the passenger, and as the act cannot be said to be negligently done unless the doing of it involves remission of duty on the pait of the servant owed to the passenger, the charge here is essentially none other than that through the neglect of duty due the passenger from defendant’s servant the passenger was violently thrown from the train, etc., etc. The carrier assumes to the passenger the duty of protecting him ■from the negligent acts — pretermissions of duty — of all its employes, and is liable upon any breach of this obligation. Hence our conclusion that the count states a cause of action though it does not in terms aver that the injury resulted from the defendant’s negligence, nor that the servants from whose negligence the injury is alleged to have resulted were in. charge of the train, or the like; and evidence having been adduced tending to show causal negligence on the part of defendant’s trainmen, the defendant was not entitled to the affirmative charge on the contrary theory. — M., K. C. M. & B. R. R. Co. v. Sanders, 98 Ala. 307-8.

No assignment of the demurrer to this count specified the objection to this count which we have just cousid-' ered, and no assignment covered this point except perhaps one which was too general for consideration under the statute.

The count showing the, duty of carrier by defendant to the intestate, and that he was injured by negligence on-the part of the carrier’s servants for which the defendant was responsible, it was not necessary for the quo modo of the infliction to be averred, certainly not with any more particularity than was used, viz.: that he “was violently thrown from the train.” Where, as in this case, the injuries are alleged to have caused the death of the passenger, and damages are claimed by the personal representative for the death, it is not necessary to describe the character of the hurts as it is to some extent where death does not ensue and the injured party himself sues for the damages he has sustained. The damnifying fact here is the death, and beyond showing the causal connection between the wrong and that result a description of the injuries is not necessary, since the damages recoverable do not depend upon any other characteristic or consequence of the injury than its fatality i A very usual form of averment in this class of cases is that “the intestate Avas thereby so injured that he died;” and the fact that death did not ensue immediately upon the injury being inflicted can have no bearing to require a further description of it. The averment here is in effect that the intestate Ava.s so greatly injured, bruised,, hurt and shocked by the injury he sustained from being violently thrown from the train that he never recovered from such injury, but soon thereafter died on account of it.' This is an averment to common understanding that he died from the injuries sustained by being thrown from the train, and is sufficient.

It is not necessarily negligence for a passenger to alight from a running train even in the night time and at a dark and unlighted place. It depends upon the speed with which the train is running. It may be running so slowly as to be as safe to alight as if it were standing stock still. And even if it were going faster than this, say two or three miles an hour, so that it would not be as safe to alight as if it were at rest, it cannot still be said as matter of law to be negligence to attempt to alight.. It is a question for the jury. Plea 5 was therefore bad. With that plea in the case the jury would have been bound to find that intestate ivas guilty of negligence in alighting while the train was in motion, the slightest motion, though they might have believed that there was no danger from that motion in the act of alighting; or, finding even that the motion was sufficient to involve some risk, they might have fGund that it was such risk as a man of ordinary care and prudence would take under the circumstances. The danger from the motion, whatever it was, was not necessarily greater because the time was night and the place was dark and unlighted. The passenger may have known the place as well under those circumstances as any other. And to say the most those were also considerations for the jury. The demurrer to this plea was properly sustained.

More than eight’months intervened between the date of the infliction of the injuries which plaintiff claims caused the death of her intestate and the date of his death. A prominent issue on the trial arose on the traverse of this claim. For the plaintiff it was sought to show that the injuries were of a serious and permanent nature, continuing unhealed and uncured to, and caused ■his death. For the defendant it was sought to show that the injuries were trivial in character and extent; that he had recovered from them long before his death, and that his death resulted from other and independent causes. To this issue, manifestly, the nature and extent of the intestate’s injuries and their continued effect upon him, were of the same pertinency as if he had not died, but living, had himself sued for damages resulting from the injuries: the character, extent and continuance of the injuries constitute a chief matter of inquiry in the former case as well as in the latter; in the latter on the question of the amount of damages sustained by him, and in the former on the question whether the injuries caused his death, and thereby entailed damages recoverable by his personal representative.’ Being thus the thing under inquiry in this as in the case supposed, evidence of his complaints of hurts, attributable to the alleged negligence of the defendant, made throughout the intervening time was properly received, confined, as it was, by the court to expressions in respect of current conditions to the exclusion of narration of past conditions and of the causation of the present conditions complained of. Phillips v. Kelly, 29 Ala. 628; Western Union Telegraph Company v. Henderson, 89 Ala. 510; Birmingham Union Ry. Co. v. Hale, 90 Ala. 8; Roland v. Walker, 18 Ala. 749.

The circuit court did not err in overruling defendant’s motion to exclude the testimony of Mrs. Matthews that her husband, the injured man, Avas never able to do any manual labor after he was hurt.- — South & North Alabama Railroad Company v. McLendon, 63 Ala. 266.

The exception to the court’s refusal to give the affirmative charge against count 7, requested by defendant is sought here to be sustained on several grounds. One of these, viz, that the suit is by the plaintiff in her individual capacity and the proof does not show any cause of action in her individually, we have already adverted to, and held untenable.

Another ground insisted upon is that there was no evidence before the jury tending to sIioav that intestate’s death Avas caused by his being throAvn from the train to Avhich the complaint ascribes his death. It would serve no good purpose to go into a discussion of the evidence relating to this matter. It must suffice us to say that we find that there was evidence adduced before the jury tending to show that the fall from the train was the cause or a proximately contributory cause of intestate’s death.

Another insistence is that there was a fatal variance between the averment of this count and the proof in respect of the infliction of the alleged injuries upon Matthews. the intestate, — in respect of the quo modo of their infliction — in this, that while the court alleges that he “was violently thrown from the train, and so greatly injured,” etc., etc., the proof is that he voluntarily stepped from the moving train onto the station platform, lost his footing and fell, receiving the alleged injuries. It is to be conceded that there is not in every sense precise correspondence between this averment and the proof. Intestate was not, strictly speaking, thrown violently from the train. He stepped from the train. But when he stepped from the tram its motion had imparted a momentum to his body which when he set his foot on the platform threw him violently down. So that an accurate statement of the occurrence proved would be this: That intestate through the negligence of defendant’s servants was by the motion of the train, as he attempted to alight, thrown violently'to the ground and thereby so greatly injured, etc., that he died. In a sense being violently thrown down by the, train as he was in the act of leaving it, was being thrown from it. It is probable on the evidence indeed, that the violence to his person which threw him down had its initial effect upon his body just as he set his foremost foot on the platform — the evidence shows that he did not jump with both feet, but that he stepped with his left foot' — and started his fall while the other foot was yet on the step of the car. If this were so, it is entirely accurate to say that he was thrown from the car. We think the evidence substantially supports the averment, and that is sufficient. — S. A. & A. P. Ry. Co. v. Gillum, 30 S. W. 697; T. P. Ry. Co. v. Williams, 62 Fed. Rep. 440; Hindman v. Timme, 8 Ind. App. 416;L. S. & M. S. Ry. Co. v. Hundt, 140 Ill. 525; C. H. & I. R. R. Co. v. Revalee, 17 Ind. App. 657; Moser v. St. P. & D. R. R. Co. 42 Minn. 480;Wilson v. Smith, 111 Ala. 170, 176.

It is further insisted that the affirmative charge •should have been given for defendant for that the evidence without conflict shows that Matthews was guilty of negligence which proximately contributed to his injury in attempting to get off the train when and as he did. We do not find this to be the fact. One phase of the evidence tends to show that his attempt to alight was made when the train had just started and was moving very slowly, probably not beyond the rate of a mile, or two an hour. Though it was night and the place was not lighted, the jury might have found that he knew precisely the nature and location of the platform, as he lived at that station and had frequent occasion to get on and off trains there; and there is no tendency of the evidence to show that he miscalculated his proposed footing pn the platform. It ivas solely for the jury to say in view .of this aspect of the evidence whether he ivas negligent in making the attempt to alight, as has been often decided. Nor, in our opinion, can it be said as matter of law that he was negligent in the manner of his attempting to alight, i. e., on his left foot, the train moving to his left. A train may be moving so slowly as to admit of this being done without danger, and on the evidence as to the speed or apparent speed of the train when the attempt was made, it was for the jury to say whether a man of ordinary prudence would have made the attempt.

Charge 3 refused to defendant is an apt illustration of the fact that much is said and properly said in the opinions of appellate courts which is not proper to be given in charge to juries. This excerpt from the opinion in East Tenn. Va. & Ga. Ry. Co. v. Holmes, 97 Ala. 332, is as applied to the case at bar, patiently abstract and argumentative ; and the same is true of charge 11. Charge 5 was properly refused on considerations adverted to above having reference to the issue of contributory negligence vel. non.

If the court erred in refusing the 7th charge requested by the defendant, the error was cured by the giving of defendant’s 46th charge Avhich Avas in substance and almost literally identical with charge 7.

Charges 10 and 16 refused to defendant were bad for failing to hypothesize that intestate’s negligence therein referred in point of fact contributed to Ms injury.

The evidential fact hypothesised in charge 9 as to MattheAvs being cautioned against making the attempt to alight did not demonstrate the negligence of such attempt : The question was still for the jury.

Judge Matthews’ death may have been directly caused by disease occurring months after his injury, but this disease may yet have been caused by the injury, and defendant would be liable for the death, the chain of causation starting with defendant’s negligence and ending in Matthews’ death. — Armstrong v. Montgomery St. Ry. Co. 123 Ala. 233. Charge 14 was therefore bad.

Charge 15 requested by defendant is a pure express argument.

We are not prepared to say that the verdict of the jury was so palpably against the evidence as to justify us in the conclusion that the court below erred in overruling the motion for a new trial.

Affirmed.

Haralson, Tyson and Dowdell, J. J., concurring.