Louisville & Nashville Railroad v. Hall

91 Ala. 112

Opinion

STONE, C. J.

When this case was before us at a former term—87 Ala. 708—we ruled on demurrers to the several counts of the complaint, and pointed out defects in each of them. The imperfections in several of them were slight. When the case returned to the City Court, the first, sixth, and ninth counts were so amended as to conform to our views. Demurrers were interposed to the amended counts, re-assigning many of the grounds assigned to the originals, and adding new ones. These demurrers were overruled, and we think rightly. Each of these counts, as amended, presents a prima facie cause of action within the rules of pleading -which prevail in this State. Very great technicality is not required with us. Certainly to a common intent- is enough.

The plaintiff, under leave of the court-, added four new counts to his complaint-. These were severally demurred to, and the court held the twelfth and thirteenth counts to be sufficient. For the reasons stated above, we hold eacli of these counts good.

Appellant’s criticism of count 13 does not take in its whole scope. It contains this averment: “But defendant, after it obtained the management and control of said railroad, negligently failed to maintain such whipping-straps, or gallows and ropes, or other devices, although they were an effective and proper means of giving -warning to defendant’s freight brakemen, and other employés upon its freight trains, of their approach to said bridge, and negligently allowed the same to rot down, or be removed, and negligently failed to provide any other sufficient means of informing said brakemen of their approach to said bridge, although it knew said bridge was of a height to be dangerous to such freight brakemen, unless provided with whipping-straps, gallows and ropes, or some other similar and effective device; or would have known thereof by the exercise of reasonable diligence.” This is an averment that whipping-straps, if maintained, would have been an effective and proper means of giving warning of the approaching peril, and that neither that, nor any other means, was employed for that purpose. This, as an averment, is sufficient.

To counts 12 and 13, the defendant pleaded, among other defenses, that the injury therein complained of did not occur within twelve months before the filing of said additional counts-This plea was demurred to, the ground alleged being, that neither of them presented any new cause of action. This demurrer ought to have been sustained, but the record fails to show any ruling on it.

The fifth count of the complaint alleges, as a breach of duty by the defendant, the failure of the engineer to blow the-whistle, or ring the bell on the train, as by section 1144 of the Code he was required to do, “before reaching any public road crossing.” This was assigned as a special ground of demurrer; and inasmuch as the City Court overruled the demurrer to this count, it must have held this ground of demurrer insufficient. On the former hearing of this case—87 Ala. 708, 718—we ruled, that this case does not fall within the provisions of that statutory requirement. We said, “its [the statute’s] design was to warn and protect persons who, at a public crossing, pass across and directly on the track, and who would be in danger of being struck and run over by an approaching train.” It is contended before us that the City Court erred in not sustaining the demurrer to this part of the fifth count.

It is a general rule, that a demurrer to a part of a count will not be entertained, unless the imperfect part is so material as that, being eliminated, it leaves the count without a valid cause of action. A seeming exception is recognized when the suit is on a penal bond, with more than one assignment of breach. In such action, each breach is treated as a separate charge, or count, and may be demurred to separately.—Hayes v. Anderson, 57 Ala. 374; Copeland v. Cunningham, 63 Ala. 39; Flournoy v. Lyon, 70 Ala. 308. The present suit does not fall within that class. The clause objected to is only one of several alleged, cummulative acts of negligence, and if it be stricken out, .the count will remain amply good. Security against the possible injurious effects a defendant may suffer from such irrelevant averment, must be sought in a proper instruction to the jury. Demurrer can not reach it. Possibly, it should be stricken out as immaterial and impertinent, if moved for.—C. & W. Railway Co. v. Bridges, 86 Ala. 448. We find no error in the rulings on the pleadings.

The plaintiff propounded to defendant interrogatories for discovery, rs provided by our statute. — -Code of 1886, §§ 2816, et seg. Defendant objected to these interrogatories, and moved to suppress them, and also the answers to them. The court sustained this motion in part, and overruled it in part. The ruling of the court in permitting any of the testimony so obtained to go to the jury is assigned as error.

It is certainly the rule, our system of jurisprudence, that no one can be required to criminate himself. The general expi ession is, that while in civil proceedings any fact material to the maintenance or defense of the suit may be elicited from the adversary by discovery, yet no one can be required to discover any fact which will expose him to a criminal prosecution, or to a penal recovery.—2 Daniell’s Ch. Pr. 1557; 2 Story’s Eq. Jur. § 524, et seq.; Ib. 575; 1 Pom. Eq. §§ 191, 194, 201; 2 Amer. & Eng. Encyc. of Law, 201 et seq. In one case, Glynn v. Houston, 1 Keen, 320, 337, Lord Langdale said, “a bill of discovery can not be sustained in aid of an action for a mere personal tort.” Other authorities, however, extend this doctrine further than Lord Langdale’s language would seem to justify. We base our judgment on the language of our statute (Code, § 2822), which declares that, under its provisions, ‘‘the party is bound to answer all pertinent interrogatories, unless by the answer he subjects himself to a criminal prosecution.” There is nothing in this assignment of error.

One of the severely contested inquiries in the court below was, whether the bridge, by striking against which the plaintiff was injured, could have been raised higher above the track, without too great inconvenience to vehicles crossing it, without great and serious injury to neighboring land-proprietors affected by the change, or without too great expense to the railroad corporation. Many -witnesses residing in or near Green-ville — (the bridge was at Greenville) — were examined by deposition on this controverted question, and gave testimony pro and con. The testimony was taken on written interrogatories served and crossed. In propounding interrogatories, plaintiff inquired if there were not streets in Greenville, and public roads near by, leading to Greenville, which had steeper grades than the approach to the bridge would be, if the bridge was raised two feet higher. (If raised two feet, the bridge would probably be above the ordinary danger-line). No objection was filed to the interrogatories calling for this information, but defendant crossed the interrogatories thus propounded. On the trial below, defendant moved to suppress the answers in reference to other streets and neighboring roads. The answers were strictly responsive to the interrogatories. The court overruled the motion, and admitted the testimony. This was excepted to, and is assigned as error. We need not decide whether this testimony was legal, if objected to at the proper time, although we know no rule that would justify its introduction. The objection came too late, and was rigidly overruled.—Townsend v. Jeffries, 24 Ala. 329; Wilkinson v. Mosely, 30 Ala. 562; Walker v. Walker, 34 Ala. 469.

Plaintiff received his injury by a collision with the low bridge immediately south of the depot at Greenville. He was brakeman on a freight train, and his post of duty, when the 1 rain was in motion, was on the top of the cars. When struck, he was walking back on the top of the cars, to his proper place on the train. He was making his eighth trip over the road, having passed safely seven times under this bridge, but always in the night time. It was night when he ivas injured, and he had his back to the bridge. Several witnesses testified that they had informed and cautioned him in regard to the low bridges, including this one at Greenville; and he admitted in Ins own testimony that he had been notified of the low bridges, but could not say whether he was notified of the one at Greenville. The company had posted notices of the low bridges, shown on its bulletin boards, and in placards hung, under regulations, in the cabooses of the freight trains. Many exceptions were reserved to the court’s rulings, excluding testimony of the contents of the placards, and of the duty of the train 'officers to keep them posted in the cabooses. There is nothing of merit in these exceptions; ' and if there were, a copy of the placard was put in evidence, and thus supplied the desired proof in an unexceptionable shape. The proper inquiry was, not what duty required of the officers of the train, but to what extent they performed that duty. It is neither a defense, nor a condonation of an act of negligence, that duty —commanded duty — required of the actor that he should be diligent. Nor was it material to inquire the meaning of the words “Fort Deposit and Greenville,” found in the placard. The low bridge between those points, and notice of it, were immaterial inquiries in the present suit.

The witness, Porterfield, testified to general notoriety in Greenville, of prior injuries suffered by brakemen in consequence of the low bridge there. This was objected to, but the decision of the question was withheld. It is not shown that 'it was subsequently called to the attention of the court. Later in the trial, positive testimony of those prior injuries was given. This legalized Porterfield’s testimony, not as evidence that those injuries had been inflicted, but as testimony to be weighed by the jury in determining whether the railroad company, through its officials, had notice of the injury previously done. This testimony, in both of its aspects, was material upon a single inquiry — namefy, whether the defendant was guilty of negligence in maintaining the bridge at its then elevation. But, in this inquiry, it must not be forgotten, that if the irregularity of the ground’s surface, and the state of the neighboring improvements, were such that the bridge could not be raised without too great inconvenience to vehicles crossing it, without great and serious injury to neighboring land proprietors affected by its change, or without too great expense to the railroad corporation, either of these would furnish an excuse for not raising the bridge. Either of said categories would present a case where one convenience must yield somewhat to the conservation of another. This inquiry should be fairly presented to the .jury, and carefully considered by them. L. & N. R. R. Co. v. Hall, 87 Ala. 708.

Yery liberal rules should prevail as to the legitihate scope of cross-examination. Still boundaries must be assigned io it. It should never be so indulged as to lead to a multiplication of issues having no direct bearing on the question at issue, and whose only effect will be. to draw the minds of the jury from the main questions involved. We have said, many times, that railroads are not required to adopt every appliance which some roads, even a majority of the well regulated, have incorporated into their system of management. Something must be accorded to diversity of judgment. If many well regulated railroads abstain from adopting a particular appliance which other roads, even a majority, consider wise precautions and adopt, such abstention can not be pronounced, per se, recklessness, or negligence.—Allen’s Case, 78 Ala. 494; Propst’s Case, 83 Ala. 518; Wilson’s Case, 85 Ala. 269; L. & N. R. R. Co. v. Hall, 87 Ala. 708, 719.

What we have said above has reference to “whipping-straps” as useful warning signals, so elaborately presented in the record before us. The influence that device should exert as a factor in the decision of this case, is not alone whether it is serviceable in giving notice of danger ahead. The testimony on this question is very widely variant. The inquiry is broader than this. Is it so manifestly serviceable as to command the consensus of intelligent railroad men so generally as that it can not be reasonably ignored or disregarded ? Or, is its utility disbelieved and disallowed in the management of many well governed and well regulated railroads ? If this question be reasonably debatable, and skilled railroad men honestly differ in judgment as to the utility of this, or any other cautionary appliance, and differ to such extent as that many well regulated railroads abstain from their use, then such abstention is not legal negligence.

We recur to the question of the scope of legitimate cross-examination. Defendant examined by deposition many railroad officials scattered over many States of the Union, as to the use and usefulness of “whipping-straps” as cautionary signals. On cross-examination, plaintiff inquired as to the rule and habit in reference to such warnings practiced by some fifty or more railroads scattered over many of the States, and in Canada. In reference to'some of these roads, the inquiry went further, and called for the disclosure of certain injuries inflicted by over-head, low bridges — whether the railroad had been mulcted in consequence of such injuries, and whether they had not subsequently adopted “whipping-straps” as warning signals. These cross-interrogatories were objected to, and a motion made to suppress the testimony they elicited. All such testimony ought to have been excluded. Its tendency was to multiply the issues almost indefinitely, and to greatly embarrass, if not to mislead the jury, in their deliberations. In overruling the motion to suppress this part of the testimony, the City Court erred.

We hold, also, that the City Court erred in allowing «the letters of Metcalf, oí the attorneys, and of the answers to such letters, to be put in evidence. There was nothing in them which should legitimately weaken the force of the witnesses testifying, and they could not be competent for any other purpose. If they had any influence, it was to prejudice the jury in their deliberations, while the correspondence, properly interpreted and understood, should not, in any respect, influence the verdict of the jury.

A photograph, “Exhibit P,” was received in evidence, against the objection and exception of defendant. That photograph was material evidence only on the postulate, that it furnished some aid in determining the grade of Milner Street, at the point of its eastern approach to the bridge. The photographer was not examined as a witness, and there is no positive proof of the position he occupied when the picture was taken. Lane, and other witnesses familiar with the locality, state it is not a correct representation of the place, and some of them say they would not have recognized it from the picture. No witness testified that it was a correct representation. Is it not true that the correctness of such a picture, as an aid in determining the grade of the street, must depend largely on the position and elevation of the camera, at the time it was taken ? Can such a picture give a correct impression of grade, if taken longitudinally with the street, or at an acute angle ? To be at all reliable on the inquiry of the grade, should not the camera be placed at a right angle with the street ? But the court is not agreed on the question of its admissibility, and we therefore hold that it was admissible for what it was worth.

The general charge to the jury was given in writing at the request of the defendant. The first and second exceptions interposed to it by defendant were to certain segregated portions thereof, which the reporter will embody in the statement of facts, as Nos. 1 and 2. The court thereupon stated orally, that he inserted the word “ordinarily” in certain designated places in each portion of the charge excepted to. The alteration was not written. The defendant excepted in the following language: “And the defendant excepted to that portion of said charge given with said qualification and instructions as above stated.” It is contended before us that the City Court erred in not correcting the writing, instead of making the correction orally. If this objection had been rested on the ground, that the correction was not in writing, it is probable we would hold it well taken. It was due, however, to the trial court, that the true ground of objection should be stated. If that had been done, there is little, if any doubt, that the manuscript would have been then and there corrected. We decline to make this a ground of reversal. — 3 Brick. Dig. 80, §§ 33, 35.

The first charge given at the instance of plaintiff is faulty, in that it employs the word “knowledge” in several places, where notice meets all the requirements of the law. If, before the collision, plaintiff was reasonably notified of the low bridge at Greenville, this “put him on the look-out, and on inquiry and observationand if he failed in this duty, when its observance would have enabled him to know where the bridge was located, such want of knowledge was his own fault, and would constitute his ignorance contributory negligence.—L. & N. R. R. Co. v. Hall, 87 Ala. 719-20; Mills v. Sibert, 81 Ala. 140.

Whether or not there was any testimony which, authorized the submission to the jury of the inquiry of exemplary, punitive or vindictive damages, was and is, as we have stated above, one of the severely contested questions in this case. That question depends on another, namely : Was it practicable to raise the bridge above the danger-line, without too great inconvenience and injury to _ the public, or to adjacent property holders affected thereby, and also without too great expense to the railroad corporation ? Under the testimony, the first of these inquiries is the one of chief importance; for, under all the testimony, the expense of erecting a new and higher bridge was too insignificant to be weighed in the balance against the peril to human life. Many witnesses gave testimony for and against t he practicability of elevating the bridge, having reference to the street as a highway, and to the two public warehouses which lined the approach to the bridge. We feel safe to say that, on the question of practicability, the testimony was in marked and palpable conflict.

If, under the rules of practicability stated above, the bridge could have been so raised as to allow a brakeman on the top of the cars in use to pass under it with absolute safety, then, to fail to do so was negligence, and subjected the railroad company to Ihe actual damages caused by the failure, unless there was proximate, contributory negligence. Under what conditions will the neírlieence become so increased and ajreravated as to justify the imposition of greater damages by way of punishment, than compensation for the actual injury sustained ? On this question the court stands equally divided; two of the judges holding there is no testimony authorizing the jury to find that degree of negligence which justifies punitive damages; while the other two maintain there was enough testimony ■on that question to be considered by the jury. The question raised by the charges, whether there could be a recovery of vindictive damages in this case, is not decided.—Wilkinson v. Searcy, 76 Ala. 176.

Bulletin boards and placards are sometimes resorted to, as methods of giving notice. They are not the only methods. If, before the injury, plaintiff was expressly notified of the low bridge in question, this answered all the purpose a bulletin board or placard could accomplish. Charge 21 asked by defendant should have beeu given.

This opinion must be interpreted in connection with our former ruling.—87 Ala. 708-25.

Reversed and remanded.