Alabama Mineral Railroad v. Jones , 121 Ala. 113 ( 1898 )

McGLELLAN, C. J.

— This case has been heretofore in this court, and is reported in 107 Ala. 400.

The negligence counted on in each of the four counts of the complaint was that of Scott, the foreman of the section crew of which plaintiff’s intestate, John Jones, was a member. The first and third counts charge that he had superintendence intrusted to him in respect .of said crew and their duties and of two hand-cars used in their 'work, and that whilst in the exercise of such superintendence he ordered the hand cars to be run over and across a bridge spanning Coosa river at a high rate of speed, the one following the other at a distance of from fifteen to twenty feet, and that while this order was being executed and the cars were thus being run across the bridge, the said Scott, being on the front car, negligently and carelessly stopped (1st count) the car on which he was riding -without notifying those on the rear car, and that by reason thereof the hindermost car ran into the front car whereby Jones was knocked off; and (3rd count) that said Scott negligently and carelessly suddenly checked the speed of said front car without notifying those on the rear car, and that in consequence the rear car collided with the front car whereby Jones was knocked off and killed. The second and fourth counts aver that Scott was in charge and control of the front car in crossing over the bridge and that (2nd count) he negligently stopped it, and (4th count) negligently checked its speed without notice to those on the rear car whereby the hindermost ran into and collided Avith the foremost car, knocking Jones off and killing him. The general issue and several pleas of contributory negligence Avere pleaded. The 4th plea is as fol-Ioavs : “Defendant says that plaintiff’s intestate contributed proximately to his own injury and death in this, that plaintiff’s intestate was a section hand and that it was a part of his duty to propel the lever car upon which he Avas riding by means of a handle or lever, and that it was his duty to grasp said lever with one or both hands while said car was moving, and defendant avers that at the time of said injury and death' the said John Jones, intestate, was riding on tbe rear end of a" hand car which was moving, and in front of which and near to it was another moving hand car going in the same direction, yet notwithstanding this said Jones failed to grasp or hold to said handle or lever of said car, but stood at the rear end thereof and was negligently and carelessly looking up and down the river, over which said cars were passing, or was looking backward at said time, without holding on to any part of said car or to the handle thereof, which was an unsafe and dangerous way of crossing said trestle and river on a moving hand car; and but for such negligent conduct of plaintiff’s intestate said injury and death would not have happened. Wherefore defendant says that plaintiff’s intestate contributed directly and proximately to his oavu injury and death.”

To this plea plaintiff replied “that her intestate was holding to said handle and continued to so hold until he was knocked loose by the sudden putting on of the brake of the car upon which he was riding, which said putting on of said brake suddenly had become necessary by reason of the sudden stopping of the car in front, and that immediately after his hands were so knocked loose by the putting on of said brake and before he had time to recover his hold on said handle the car he was on ran into the car in front, by reason of which he was thrown out of said car to the ground below and killed; and she denies that said intestate was guilty of any such contributory negligence as would bar the defendant’s liability for his death.”

There was evidence tending to prove'the averments of each count of the complaint and also evidence tending to disprove them. Similarly the averments of the special pleas found lodgment in the tendencies of the evidence, and there was other testimony going to disprove them. And there was evidence both ways on the allegations of the replication copied above. In short the evidence was in conflict upon every issue presented on the trial; and the court very properly refused tb give the affirmative charges requested by the defendant on the whole case and upon the respective counts of the complaint.

Many special instructions were given- for plaintiff to which exceptions were reserved, and refused to defendant and exceptions likewise reserved to said refusals. The rulings of the court on these charges were in the main correct. In some particulars they were erroneous, and to these only will we refer specially.

The two hand cars were precisely the same in construction, weight, motive power, brakes and all other appliances. They were manned each in the same way and by the same number of men. They were going across the bridge at the same rate of speed and at least flftéen or twenty feet apart. Presumably they-could be each stopped within the same distance. Presumably also the speed of each could be controlled within the same time and graduated in the same degree within any given time. Presumably therefore a signal given at the same moment of time, indeed the same signal, to each of the crews to .check the speed of each could be obeyed at and in the same time by each crew, and the speed of each would ■ thereby be reduced to the same extent, so that the relative distance between them would be maintained, and there would be no running of the rear car on to the front ear, no collision. There was evidence that Scott gave the signal to check the speed to each car at the same time, by the same motion of his hands. Upon this evidence charge 8, given for plaintiff, hypothesizes negligence on the part of Scott as matter of law. This was clearly . erroneous. It can surely not be said as matter of law that Scott acted negligently in giving the signal to check the speed to both crews at the same time in view of the facts referred to above. In all human probability • looking at the situation from Scott’s standpoint at the time he gave the signal the cars would have equally lessened their speed until they stopped and all the while have maintained the safe distance apart which separated them at the moment the signal was given, and that they did not maintain this distance goes to show that the signal was not given to each of the crews at the same time rather than to show that the signal if so given was negligently given. At the most the plaintiff was only entitled to have the question as to whether such cotempor-aneous signals was negligence submitted to the jury, and we make this concession more on account of tbe former opinion in tbis case than otherwise. The effect of this instruction was to take the question away from the jury and to. declare as matter of law that the giving of the signal to both crews at the same time was negligence. The court erred in giving this charge.

Charge 5 refused to defendant declared as matter of law that the giving of the signal to slow up both crews at the same time was not negligence. Influenced largely by the former decision we hold that this charge was well refused.

And charge 4 given for the plaintiff is faulty in that it assumes as matter of law that Scott should have first directed the crew of the rear car to slacken its speed before giving a like signal to the crew of the front car.

The evidence did not, in our opinion, furnish sufficient data for a verdict to be rendered in any substantial amount. Notwithstanding this, however, plaintiff might have been entitled to nominal damages. Hence charges 28 and 29 were properly refused.

■ ■ It is unnecessary where recovery is sought of the amount which deceased would have expended on dependents had his expectancy of life not been disappointed, to prove more than that he had persons who would have been distributees had he left an estate dependent on him for support and the amount he contri.buted to their support; and there is no legitimate occasion to show the ages of his minor children.

The testimony of 'Doak and Peoples as to the statement made by Scott was properly received as tending to impeach the latter as a witness, predicate therefor hav- ' ing been laid by questions to Scott.

The rulings of the court reserved for our consideration to which we have not referred have been considered by us and found to be free from error.

Reversed and remanded.