Sheffield Co. v. Harris

61 So. 88, 183 Ala. 357, 1912 Ala. LEXIS 338

• Court: Supreme Court of Alabama
• Decided: December 18, 1912
• Status: Published

Opinions

de GRAFFENRIED, J.

— The plaintiff, Bryant Harris, was on March 28, 1909, struck by one of the Sheffield Company’s street cars and suffered the loss of both of his feet. When the plaintiff received his injuries he was only five years of age, and the law, on account of his age, does not apply the doctrine of contributory negligence to him.

The plaintiff received his injuries in the town of Sheffield, at or near the point in said town where Atlanta avenue, which is 80 feet wide, crosses D street. Atlanta avenue runs north and south, and D street runs east and west. The defendant, the Sheffield Company, owns and operates a street car line on said avenue. The track is imbedded in the street and forms a part of it. The Baptist Church is situated on the corner immediately west of said avenue and immediately south of D street. Atlanta avenue is straight, and for several hundred feet north and south of the point where the Baptist Church stands the view up and down the street is unobstructed from sidewalk to sidewalk. From a point several hundred feet north of the said church on said Atlanta avenue to the point where the plaintiff received his injuries, it is slightly downgrade, and the evidence is in dispute as to whether the car which struck the plaintiff was traveling slowly, at a moderate, or at .a rapid rate of speed when the plaintiff was struck.

The motorman testified that the car was, at the time the child was struck, in perfect running and working order, and that he used all means known to a skillful motorman to stop the car when he first discovered the presence of the child on the street car track, and the evidence shows, we think, with reasonable certainty, that the car was not stopped until after it had passed the point of the plaintiff’s injuries about 80 feet.

It appears that the plaintiff, along with other children, had attended Sunday School that morning — the injuries were received by the plaintiff on Sunday morning — and that the two Sunday School classes which were composed of children of tender age, to one of which the plaintiff belonged, had just been dismissed ahead of the other children; that they had left the church; that some of them were standing on the sidewalk and in the street near the sidewalk next to the church; that some of them had crossed the street; and that the plaintiff had either gone partly across the street and then turned back and was going back towards the church when he was struck, or he had walked out to the east rail of the defendant’s track and then turned back towards the church,- but was struck before he could get off the track.

The defendant insists that the child had crossed the track several feet and walked east and away from the track, when he suddenly wheeled and ran in front of the car; that the injuries were unavoidable; and that the danger could not have been reasonably anticipated. There was evidence, however, on the part of the plaintiff, that the child left the sidewalk in front of the church and proceeded in the direction of the defendant’s track, and that he never did get beyond the east rail of the track before he turned and started back towards the church.

However this may be, the child received his injuries while on the defendant’s track, and the motorman, in whose plain view these children of tender years were for 400 or 500 feet before he reached the point where they were on the street, testified, “I could see that there were a number of children all along there.” These children, as we have already said, composed the two junior classes of the Baptist Sunday School; children who, on account of their tender age, were dismissed ahead of the rest of the school, and there is nothing in the evidence tending to show that they or any of them were attended by a nurse or other person of discretion.

As the motorman “could see that there were a number of children all along there” for a distance of several hundred feet before he reached them, he could, also, probably have seen that their sizes indicated helplessness and heedlessness, and that, in passing them, even ordinary prudence would require the exercise of great caution. The evidence of the motorman tends to show that he saw the plaintiff when he left the sidewalk in front of the church and started east across Atlanta avenue, and it also tends to show that the car was then traveling at from eight to ten miles per hour. While the motorman’s testimony tended to show that the car was in good working order and that he used all the means known to a skillful motorman to stop the car when he discovered the plaintiff’s peril and that he did stop the car as quickly as it could be stopped, there was other evidence in the case tending to show that a properly equipped car, at the point where the injury occurred, operated under the conditions prevailing as they were described as existing at that time by the motorman, running at á speed not greater than six miles per hour, could, by a skillful motorman, have been stopped instantly, and if traveling at a rate of speed ranging from eight to fifteen miles per hour that it could, by a skillful motorman, have been stopped within about 25 feet.

As this car, on the occasion named, ran about 80 feet after the child was struck, and as the motorman claims that he, even before he struck the child, did all that could have been done by a skillful motorman to stop the car, and as he claims to have actually stopped the car as quickly as it could be stopped, it was, we think, under all the circumstances as shown by the evidence, for the jury to say whether, upon the named occasion, the motorman was guilty not ‘only of simple neglect, but, in the matter of the speed at which he permitted the car to travel to the place occupied by the plaintiff and his companions near the church, of that reckless indifference to probable consequences as amounted to wantonness. The motorman admits that he saw the plaintiff when — as he claims — -he crossed the track; but he admits that after that time he lost sight of the child until after it had turned around and had started back in the direction of the track and was in dangerous proximity to it: He gives an explanation of why he lost sight of the plaintiff; but the jury may not have believed his explanation, or, if they did, may not have accepted it as furnishing a reasonable excuse for such failure. ,

A motorman in charge of a street car running upon a track which is imbedded in and forms a part of the street is charged, by the law, at all times, whether his car is in a street which is frequently or one which is seldom used by the public, with constant ivatchfulness for those who, in using or crossing the street, go upon or in dangerous proximity to the track. He is also required to operate his car under such speed and with such control that, if “persons or property be upon or dangerously near the track of the street railway, the car may be, with skilled application of stopping appliances, stopped, and injury, thereby averted.” — Anniston El. & G. Co. v. Rosen, 159 Ala. 202, 48 South. 801, 133 Am. St. Rep. 32.

The motorman of a street car has no right to assume that a child of tender age — such a child as the plaintiff in this case was — who is seen by him on, or in dangerous proximity to, the track, will leave the track to avert injury. When he sees such a child, or children, on or in dangerous proximity to the track, the law requires him to at once put his car under such control as to immediately stop it, if that becomes necessary to avert injury. — Anniston El. & G. Co. v. Rosen, 159 Ala. 195, 48 South. 798, 133 Am. St. Rep. 32.

It is also a familiar proposition that a rate of speed which a street car may, with perfect safety, maintain at a given point on a street at one time, may, at another time, amount to that reckless indifference to the rights of others as to amount to wantonness.

Under some of the tendencies of the plaintiff’s evidence he was, if the jury believed that evidence, entitled to a verdict upon the first count of the complaint, and, under other phases of the evidence, it was for the jury to say whether he was entitled to a verdict under the fourth count. — Nellis on Street Railways, vol. 2, p. 347; Rosen’s Case, supra; Joyce on Electric Law, §§ 570, 573, 582.

(1) The original complaint consisted of four counts, but the second and third were eliminated, and the case was tried upon the first count, which was a count for simple negligence, and the fourth count, which alleged that the plaintiff’s injuries were willfully or wantonly inflicted. Both of these counts alleged that the plaintiff was only five years old when he received his injuries. As therefore it is plain that the plea of contributory negligence was applicable to neither count, the action of the trial court in striking that plea as frivolous was free from error.

(2) In both the first and fourth counts the word “defendant” was used where the word “plaintiff” was plainly intended, and that defect was therefore self-correcting. There was a demurrer to these counts, but the demurrer was not well taken. The sufficiency of similar counts, when tested by demurrer, has been so frequently upheld by this court that-we deem a citation of authority to sustain this statement as altogether unnecessary.

(3) The trial court gave its instructions to the jury in writing, and numerous exceptions were reserved by the defendant to certain parts of the charge. It is unnecessary to consider all of these exceptions, and we will pass upon only those which appear to have some merit, and which therefore deserve discussion.

(a) The first exception is to that part of the court’s oral charge which says, “It is admitted that the plaintiff was injured by the agents and servants of the defendant in charge of one of defendant’s cars,” etc. The plaintiff was, confessedly, struck by one of the defendant’s cars while the same was being operated by its servants and while the servants were acting in the line of their employment. The question in this case was not whether the plaintiff was injured by the defendant’s agents or servants while acting in the line of their employment, but whether his injuries were due to unavoidable accident or to th(e negligence — simple or wanton — of said servants or agents. The above statement of the_court was a mere statement of a conceded fact and did not constitute error. — Stephenson v. Wright, 111 Ala. 579, 20 South. 622; 2 Mayf. Dig. p. 568, subd. 127.

(b) Those portions <?f the oral charge numbered 19 and 6 made the basis of assignments of error Nos. 40 and 32 were (when read in connection with the rest of the charge, of which they formed a part), as applied to the evidence in this casé, correct statements of the law. —Rosen’s Case, supra. There runs through the entire charge of the court on the subject of simple negligence this statement of the court to the jury, viz: “It is the duty of a motorman, in charge of a car, to exercise ordinary cure in the management of the same, so as to avoid, so far as he reasonably can, injury to persons using the street for the purpose of travel.” And we think that this statement of the court should be read in connection with the above portions of the oral charge of the court to which exceptions were taken, and that, when so read, the portions excepted to are free from error. The charge of the court to a jury must be construed as a whole, and every statement upon any given subject in the charge should, when that can fairly be done, be construed in connection with the other statements of the court upon that subject, and if, when so construed, the law on the subject is fairly and correctly stated, then such statement of the law is free from error.

(c) The fourth count charges that the plaintiff’s damages were suffered by him by reason of the “wanton negligence or willful injury” of defendant’s servants or’ agents, etc. The court instructed the jury that the plaintiff did not contend that the defendant’s servants or agents “intentionally injured” the plaintiff. When this instruction was given, the evidence was all before the jury, the arguments of counsel had been made, and the court, in effect, told the jury that the plaintiff had abandoned his claim that his injuries had been intentionally inflicted, and only claimed that they were due, at best, to an act of recklessness amounting to wantonness. This portion of the charge was certainly favorable to the defendant, and as to it the defendant has no right to complain.

(d) The following other portion of the court’s charge was excepted to, and is here vigorously pressed as having been erroneous: “If you find for the plaintiff on the fourth count of the complaint, the damages that he is entitled to recover are compensatory, as I have heretofore defined compensatory damages to you. To this you may add punitive or exemplary damages; that is, such damages as you may think reasonable and right in this case from the testimony as a punishment to the defendant for the plaintiff’s injury. And in making your estimate of the damages you should consider plaintiff’s injuries in the light of your experience and award him such compensation as in your sound discretion, dispassionately considering all the circumstances, you deem fair.”

We have, for our convenience, divided the above excerpt from the charge into three sentences, although, as it appears in the transcript, the whole excerpt is in one sentence. We do not think that the above excerpt, even if it be conceded to be technically faulty in some minor particulars (and to these we shall later refer) is, when given a fair interpretation (such an interpretation as an intelligent jury would be expected to give it), as applied to the evidence in this particular case, an incorrect statement of the law. We think that the word “discretion,” as it appears in the third sentence of the above excerpt, was used by the court, and understood by the jury, as synonymous with the word “judgment,” and that the words “under all the circumstances,” appearing in the third sentence, really, as the facts in this record appear, were entitled to be received by the jury, and were actually interpreted by them, as meaning “under all the evidence.”

Elliptical forms of expression are not uncommon, and they rarely mislead. In this case the law was powerless to furnish to the jury a perfect standard by which to measure the plaintiff’s damages. Both of his feet were gone. He had been defonned and rendered a helpless cripple for the balance of his life. He had suffered, and he was only five years old. His damages were confessedly great, but the law has no fixed monetary standard by which human suffering can be measured, neither has it a fixed value for both of the feet of a human being. “The damages,” says the Supreme Court of the United States, “in these cases, must depend very much upon the good sense and sound judgment of the jury upon all the facts and circumstances of the particular case.-” — Railroad Co. v. Barron, 5 Wall. 90, 18 L. Ed. 591. “The law does not attempt to fix any precise value for the admeasurement of such damages, but, from the necessity of the case, leaves their assessment to the good sense and unbiased judgment of the jury.” - — Aldrich v. Palmer, 24 Cal. 513.

In this case there was no dispute as to the fact and extent of the plaintiff’s injuries, and as the law can have “no fixed measure of compensation for the pain and anguish of body and mind, or the permanent injury to health or body” (Sedgwick on Damages, vol, 2, § 481, and authorities cited), we are of the opinion that, when the above excerpt is given a fair interpretation and is considered in connection with the evidence, the conclusion is irresistible that it simply meant that the jury, in determining the amount of the plaintiff’s compensatory damages, should fix an amount which, in their dispassionate judgment, under all the facts and circumstances, Avould compensate the plaintiff for the loss which he had sustained, and that, if the jury were of the opinion, after considering all the evidence, that the plaintiff’s injuries were due to the wanton negligence of the defendant’s servants, then that they might, if they saw proper so to do, add such reasonable sum as in their judgment would sufficiently punish the defendant.

For these reasons, we are of opinion that the above excerpt from the charge of the court is free from error.

In addition to the above, we direct attention to the fact that the excerpt now under consideration was excepted to by the defendant as a whole. The first part of the excerpt — that part contained in the first two sentences — is, we think, not only a clear statement of the law, but is not subject to the hypercriticism of a skilled dialectician, and the proposition is familiar that, when an exception is taken to a charge of a court on a given subject as a whole and the charge so excepted to is good in part and bad in part, the exception fails.

(4) Many exceptions were reserved to the action of the trial court in permitting evidence to go to the jury tending to show that Atlanta avenue, at the point where the injury occurred, was in a populous section and was, at that point, a much traveled thoroughfare. That rate of speed which, in a sparsely settled neighborhood of a town and upon an infrequently used street in such neighborhood, would be a reasonable rate of speed, in a thickly settled neighborhood and upon a much used street, might amount to a reckless and dangerous rate of speed, and upon the question of wanton injury we think the above testimony was certainly admissible and relevant.

(5) This case has received a careful consideration at the hands of each member of this court, and we have above alluded to every question presented by this record which, in the opinion of any member of this court, deserves consideration. There seems to have been a fair and impartial trial of this case in the court below. The jury, under the disputed issues of fact, returned a verdict in favor of the plaintiff for $10,000. There was a judgment following the verdict, and, as we find no error in the record, we are of the opinion that the judgment of the court below should be affirmed.

Affirmed.

Mayfield, J.,

is of the opinion that the trial court committed reversible error in that part of its oral charge to the jury quoted by us in subdivision “a” of section 3 of the above opinion, in that said quoted portion was, in fact, a charge upon the effect of the evidence.

Mayfield and Sayre, JJ.,

are of the opinion that the trial court placed too high a degree of care upon the motorman in those portions of its oral charge made the basis of assignments of error 40 and 32 and referred to by us in subdivision “b” of section 3 of the above opinion, and for that reason committed reversible error.

Anderson and Mayfield, JJ.,

are of the opinion that the trial court committed reversible error in that portion of the oral charge of the court quoted by us in subdivision “d” of section 3 of the above opinion, in that the trial court, in said portions of the oral charge, erroneously stated the manner in which the plaintiff’s damages should be estimated.