Memphis & Charleston Railroad v. Martin

131 Ala. 269

Opinion

McCLELLAN, C. J.

When this case came on for the trial from the judgment in which this appeal is prosecuted, the complaint contained eight counts. Of these counts, 2 and 6 charged the reckless and wanton killing of plaintiff’s intestate by the employes of the defendant. Other counts ascribed the death of the intestate to the negligence of defendant’s servants in the operation of a locomotive and train of cars. The defendant “for plea and answer to the complaint as a whole, and to each count thereof separately,” filed pleas 1, 2, 3, 4 and 5. Plea 1 is the general issue. Pleas 2 and 3 are pleas of contributory negligence. And pleas 4 and 5 set up wanton and willful misconduct on the part of plaintiff’s intestate resulting in her death. What further occurred on the trial in respect of the pleadings is set down in what was intended to be a judgment entry, and is the judgment entry as to jury and verdict and recovery thereon, in the following words: * * “and this case coming on to be heard further, the plaintiff strikes out the fifth count of his complaint, and proceeds to trial on the first (1), second (2), third (3), fourth (4), sixth (6), seventh (7), and eighth (8) counts of his complaint, and the defendant interposes demurrers: to 6, 7, 8 counts, which are by the court overruled and disallowed. Thereupon defendant filed pleas numbered one (1), two (2), three (3), four (4), and five (5), and the plaintiff demurs to pleas numbered four and five, which are by the court sustained. Thereupon the plaintiff demurs to pleas numbered two and three as answers to counts two and six which are by the court sustained. The plaintiff elects to go to trial and does go to trial on counts two 'and six and issue being joined on pleas to said counts, comes a jury,” etc., etc. Defendant’s demurrer to the complaint is copied into the record, but plaintiff’s demurrers to pleas 4 and 5 and 2 and 3 are not set out. If what we have quoted above stating the ■action of the court on the demurrers to the pleas could be looked to or considered at all, its: construction would naturally be that the court sustained, not the demurrers, but, the pleas. But upon general principles, as many times declared by this court, the bench notes, or memoranda, or statements of the clerk which we have copied relative to the filing of demurrers to the pleas and the court’s rulings in relation thereto are not judgments of the trial court, nor any evidence for this court of any action below, nor even of the interposition of demurrers to the pleas, and cannot be considered for any purpose. Blankenship v. Owens, 27 So. Rep. 974; Carter v. Long Bros., 125 Ala. 280, 289; Tennessee Coal, Iron & Railroad Co. v. Hanson, 125 Ala. 349, 365; Alabama National Bank v. Hunt, 125 Ala. 512, 518; Crawford v. Crawford, 119 Ala. 34; Jasper Mercantile Co. v. O’Rear, 112 Ala. 247;McDonald v. Railway Co., 123 Ala. 227; Cartlidge v. Sloan, 124 Ala. 596; Elyton Land Co. v. Morgan, 88 Ala. 434; Mortgage Co. v. Inzer, 98 Ala. 608; Hereford v. Combs, 126 Ala. 369.

It follows that on the record before us it is to be taken that, assuming plaintiff filed demurrers! to defendant’s pleas of contributory negligence and of contributory wantonness, no ruling was had upon them, but that they were abandoned, and that the plaintiff took Lsue upon each of said pleas. — Elyton Land Co. v. Morgan, 88 Ala. 434; Mortgage Co. v. Inzer, 98 Ala. 608; Alabama National Bank v. Hunt, 125 Ala. 512, 519; Birmingham Ry. & Elec. Co. v. Baker, 126 Ala. 135.

And it is of no consequence that these pleas presented an immaterial issue under the second and sixth counts upon which the trial was had. We are constrained by the record to the conclusion as matter of law and fact that the plaintiff took issue upon each of them. This made them material and defendant was entitled to judgment if any one of them was proved. — Williams v. McKissuck, 125 Ala. 544; Boman v. Rosser, 123 Ala. 641; Glass v. Meyer, 124 Ala. 332; Wellman v. Jones, 124 Ala. 580; Breitling v. Marx, 123 Ala. 222; Marbury Lumber Co. v. Westbrook, 121 Ala. 179.

So far we agree with the argument of appellant’s counsel. But we cannot admit the correctness of their further insistence that these pleas were proved, and that, of consequence, the affirmative charge requested by defendant should have been given. No one of the pleas was proved. To •saj'- the most it was for the jury to determine whether Mrs. Martin, the intestate, was guilty of negligence which proximately contributed to her death, as averred in the second and third pleas, or of reckless and wanton, or willful exposure of her person to- the peril from which she suffered death, as averred in the fourth and fifth pleas. Under these latter pleas on the evidence it was clearly a matter for inference on the part of the jury whether Mrs. Martin went inadvertently upon the track unconscious of the approach of the train, or seeing or hearing the train approaching judged that she could cross safely in front of it and attempted to do so, or, possibly, that she made the attempt in a spirit of reckless and wanton abandon and indifference to results likely to ensue. So that it can by no means be said that either the fourth or the fifth plea was supported by uncontroverted evidence or beyond adverse inference.

Recurring to pleas two and three, it is to be conceded that the evidence without conflict and without affording ground for any contrary inference establishes that Mrs. Martin in g’oing upon the track in front of the engine was guilty of rashnessi and negligence such as would bar recovery by plaintiff in this action, if her want of due care contributed in a legal sense to her death, as is alleged in each of these pleas. But it is just upon this point — whether Mrs. Martin’s proven negligence proximately contributed to her death — that the evidence before the jury afforded bases for diverse inferences deducible by the jury. On the one hand, it was open to them to find that defendant’s servants in charge of the engine and cars did all in their power to avert the disaster after they became aware of Mrs. Martin’s peril; and so finding they should have further found under these pleas that her death was the result in part of her own negligence. But on the other hand, there was evidence that when the engine was seventy-five feet from the crossing, over which Mrs. Martin attempted' to pass, the engineer discovered her fifteen feet from the track, approaching it and evincing a purpose to cross it ahead of the engine, that the engineer gave no signals of approach, and that he made no effort to stop his train or to check or lessen its speed until after the engine had reached the point of her attempted crossing, and run against her and inflicted the injuries of which she died. There was also evidence from which the jury might have inferred that had the engine been reversed, the track sanded and the brakes applied when the engineer discovered her peril, the speed of the train would have been sufficiently checked and decreased before the crossing was reached to have enabled her to cross in safety, as it required hardly a moment o'f time more than she had for her to escape. The jury having the right to find in line with these tendencies of the evidence, and sio finding, their further conclusion necessarily would have been that Mrs. Martin’s negligence in going upon the track did not proximately contribute to her death, but merely produced a situation upon which the negligence of the engineer operated as the sole proximate cause to the infliction of her mortal hurts. In other words, to quote from a strikingly analogous case: “Her negligence would not be the cause of the injury nor contributory thereto, but merely the cause of a condition upon which the negligence of the engineer in failing to use all means in his power to avoid the injury after becoming aware of her peril, operated to and as the sole cause of her death.” — Central of Georgia R’y. Co. v. Foshee, 125 Ala, 199, 218, citing Tanner’s Extrs. v. Railroad Co., 60 Ala. 621; Louisville & Nashville Railroad Co. v. Brown, 121 Ala. 221, and Central of Georgia R’y. Co. v. Lamb, 124 Ala. 172. The giving of the affirmative charge requested by the defendant would have deprived the jury of the right to find that Mrs. Martin's negligence did not proximately contribute to her death; and under pleas two and three, as well as under pleas four and five, the issue was for the jury’s determination.

The further argument of appellant’s counsel is addressed to the proposition that there was no evidence before the jury tending to show the recklessness and wantonness on the part of defendant’s servants charged in counts two and six, upon which the trial was had, and that therefore the affirmative charge requested by defendant should have been given under the plea of not guilty. When this cause was last before us it was ruled, upon a consideration of the evidence as to the character of the place where Mrs. Martin was stricken, it being the main crossing of the railroad in and between the two halves of a .town of five Jiundred inhabitants, the extent of its user by the people a® a crossing, etc., etc., the speed of the train, etc., that the inquiry was wantonness vel non was for the jury and not for the court, Memphis & Charleston Railroad Co. v. Martin, 117 Ala. 367, 383-5. We adhere to that ruling on the grounds upon which it was then rested and upon the further ground that it was open to the jury to conclude from evidence adverted to above in another connection that defendant's servants were recklessly indifferent to Mrs. Martin’s peril and wanton in their conduct in relation thereto in that they consciously failed after becoming aware of her danger to use all means at hand to conserve her safety. “We are not prepared to say there was no evidence adduced in support of” the averments of recklessness and wantonness. — Central of Georgia R’y. Co. v. Foshee, 125 Ala. 199, 227.

The assignments of error not covered by the foregoing opinion are not discussed in the brief of appellant’s counsel, and we therefore do not consider them. — -Kenan v. Lindsay, 127 Ala. 270; Henry v. Hall, 106 Ala. 84; Louisville & Nashville Railroad Co. v. Morgan, 114 Ala. 449, 456; Williams v. Spraggins, 102 Ala. 424, 431; Ward v. Hood, 124 Ala. 570; Syllacauga Land Co. v. Hendrix, 103 Ala. 254.

Affirmed.