Southern Railway Co. v. Bush , 122 Ala. 470 ( 1898 )

TYSON, J.

— Ora L. Bush, the intestate of the appellees, while a trespasser on a railroad trestle of the appellant, was struck by a locomotive engine, operated by an engineer in the employment of the appellant, and received injuries from which he died. The overruling of the demurrer to the tenth count of the complaint is the only error assigned in relation to the pleadings. This count as amended is in the following words: “Planitiffs further claim of defendant 'the sum of twenty-five thous- and dollars, damages, for that whereas, heretofore, on to-wit: the 22d day of December, 1895, defendant was engaged in operating- a line of railway in Jefferson county, -Alabama, along which locomotives and cars were propelled by means of steam, and that on said date last above, plaintiffs’ intestate, said Ora L. Bush, was struck and wounded by a locomotive of defendant, while said locomotive was running along the line of defendant’s road, and was so injured, crushed and mangled that he died within a few hours and on the same day, and that defendant’s servants or agents in charge of said locomotive were so situated that the perilous position of intestate was apparant to them and they ought to have discovered it by ordinary care in ample time to have stopped said locomotive and avoided striking him, and that the servants of defendant negligently, carelessly and recklessly failed and neglected to stop said locomotive (which they could have done) but they negligently allowed it to run against plaintiff’s intestate and crush, wound, mangle and kill him,” etc. This count charges nothing more than simple negligence. The only word it, contains upon which the inference can in the remotest degree be based for the contention that it involves the charge of willfullness or wantonness is the word “recklessHad the language been employed “that the servants of defendant recklessly” (omitting the words negligently and carelessly) in connection with that which follows, the result would be the same. “The word has a wide range of meaning. In its milder sense it may imply mere inattention to duty — thoughtlessness — indifference, carelessness, negligence; or import a heedless disregard of obvious consequences. * * * The degree of recklessness Avkicli will avoid the defense of contributory negligence is such as implies a willingness or a purpose to inflict the injury complained of — a consciousness that the unAvarranted conduct will inevitably or probably lead to wrong and injury. In charging recklessness in general terms, no more is necessarily implied than such mere negligence, thoughtlessness or inadvertence as could not be regarded as the equivalent of intentional wrong and Avhich, therefore, Avould be insufficient to overcome the defense of contributory negligence. • A °plea of contributory negligence cannot be regarded as presenting no defense because recklessness is charged in the complaint, unless it appears from the averments of the complaint that the recklessness charged amounted to more than mere negligence. There is nothing in the averments of the second count of the complaint in this case to shoAV that the Avord AAras used in the harsher sense. * * * The averments of the complaint by no means necessarily import that the objectionable act of the foreman Avas Avillful.” — Kansas City, Memphis & Birmingham Railroad Co. v. Crocker, 95 Ala. 433.

The second count referred to in the quotation above Avas very similar in its language to the one under consideration. Its allegations were that on a day specified “said car AAras being propelled at a rapid rate of speed” at a certain place on the defendant’s track, “under the charge and control of said foreman, and plaintiff was working the lever at the forAvard end of said car under the direction of said foreman; and said foreman negligently, carelessly and recklessly, applied the brakes to the AAdteels of said car with great force and suddenness, Avithout warning or signal, Avhereby the speed of said car Avas suddenly and violently checked and plaintiff was violently thrown from said car,” etc.

The count of the complaint under consideration is silent as to the location upon the track of the injury, Avheth er at a public crossing or at some other point Avliere the deceased had the right to be upon the track for the purpose of crossing it, and therefore no duty is sliOAvn by its averments resting upon the defendant’s servants not to injure him except not to injure him after becoming actually aware of his peril. For. aught that appears by the complaint, plaintiff’s intestate might have been rightfully on the track when he was struck by the defendant’s locomotive; in which case it would be liable to his personal representatives for the want of care on the part of its employés whereby the fatal injury to him was inflicted; or he may have been wrongfully on the track and hence a trespasser, in which case no mere negligence, such as is alleged in the count, on the part of the employés' would have sufficed to impose a liability upon the defendant. “And on the familiar rule which requires that construction, when two or more constructions are possible, of pleadings which is most unfavorable to the pleader to be put on his averments, this count must be held to allege that a trespasser on defendant’s track was fatally injured through simple negligence on the part of defendant’s servants. This did not sufficiently present a cause of action,” and the demurrer to it should have been sustained. — Montgomery’s Extrs. v. Ala. Gr. So. R. R. Co., 97 Ala. 305; Ensley Railway Co. v. Chewning, 93 Ala. 24.

The cause appears to have been tried upon the first, tenth, twelfth, fourteenth and fifteenth counts and the plea of the general issue; demurrers having been sustained to the [)leas of defendant invoking the defense of contributory negligence to these counts. Count one charged no more than simple negligence. It is true it contains the word “willfully,” but it is preceded immediately by the Avords “negligently and carelessly” and connected with them by the conjunction “and.” The averments of this count are fairly within the influence of what has been recently said by this court in the case of Louisville & Nashville Railroad Co. v. Orr, Admr. etc. 121 Ala. 489, where such an allegation is shown to be repugnant, and that construction most unfavorable to the pleader must be adopted. Furthermore, the facts alleged upon Avliich thd “willfulness”, is predicated would constitute no more than simple negligence.

The intestate being a trespasser on the trestle of defendant’s track, it is thoroughly well settled law, that it owed him no duty except the exercise of reasonable care to avoid injuring him, and this duty arose, not necessarily at the moment he was seen on the trestle by its employés, but at the moment the peril of his position became known to them. The latter owed no duty to deceased to keep a lookout for trespassers on the trestle, and it was not until the engineer became actually aware of his danger, that the failure to exercise preventive effort to avert the injury could constitute such gross negligence as amounts to wantonness and recklessness, as is alleged in the complaint, proof of which was neces sary to overcome the effect of the contributory negligence of the deceased and authorize a recovery.' — Glass v. M & C. R. R. Co., 94 Ala. 588; Central R. R. & B. Co. v. Vaughan, 93 Ala. 209; Nave v. A. G. S. Railroad Co., 96 Ala. 264; Georgia Pacific Railway Co. v. Blanton, 84 Ala. 154; Carrington v. L. & N. Railroad Co., 88 Ala. 472. If at the time the engineer first saw deceased on the trestle, the latter’s position Avas such that he could readily, and Avithout risk of injury, have stepped off to a place of safety, and thereby escaped being struck by the engine, the engineer had a right to presume that he Avould do so, and to act on the presumption until it became apparent to him that deceased Avas ignorant of his danger, or for some reason could not, or Avould not, extricate himself from it. And if at the time the actual circumstances, brought to the knoAvledge of the engineer, made it apparent to him that the deceased did not intend to leaAe the trestle, it Avas then too late to apply successfully the preventive means at hand to avoid the injury, Avillfulness and Avantonness, equiAmlent to an intention or willingness to inflict injury, cannot be imputed from a failure to stop the engine. — L. & N. R. R. Co. v. Black, 89 Ala. 313. The mere failure to do an act which, if done, might or Avould have avoided the injury, does not necessarily constitute the omission an intentional or willful Avrong. It is manifest that there may be circumstances attending peculiar cases which make the ascertainment of the moment when the position of a trespasser on the track becomes one of peril to himself, or of the precise moment Avhen it becomes necessary for the engineer to apply the means at hand to avoid the injury, a matter of judgment and quickness of decision, and also make good faith on the part of the engineer in exercising due care to apply the preventive means, after his mind has grasped the emergency,, and his judgment has warned him to act, an element to be considered in determining whether his failure to stop the train and avoid the injury was willful and wanton. The trespasser may come upon the track so suddenly, or, being on the track, may act in a manner so unexpected and so different from that of a rational human being, and the manifestation of his real peril and the catastrophe may be so close in point of time that only an engineer of more than ordinary quickness of decision and accuracy of judgment and rapidity of mental as well as physical action, can grasp the situation and apply preventive effort before it becomes too late. And hence the circumstances may be such that the engineer, if he acts in good faith and with reasonable care, cannot be charged with willfulness and wantonness merely because of his failure to do an act which would have avoided the injury. — L. & N. R. R. Co. v. Markec, 103 Ala. 171.

It was with these principles in view, doubtless, that defendant requested charge 25, which was refused by the court. The charge reads: “If the engineer saw Ora L. Bush at or near the east end of the trestle, as some of the evidence tends to show, but it also became apparent to the engineer that Bush saw the engine approaching, and was near enough to the east end of the trestle to have readily gotten off and out of the way of danger, the engineer would have had a right to presume that Bush would get off and out of the way of danger, until by his conduct he showed that it was not his purpose to do so, and it would be the duty of the engineer to begin to stop the engine only from the moment that the deceased’s conduct made it reasonably manifest that he did not intend to get out of the way, or when, from deceased’s position on the trestle, it became reasonably manifest that he could not reasonably extricate himself from the peril; but the engineer, acting in good faith and with reasonable prudence, might delay using such preventive effort until too late to avoid the collision, in which event the railroad company would not be liable.” There ivas a tendency of the evidence, arising chiefly from the testimony of the engineer, but aided by that of other witnesses for plaintiff, which, we think, justified this charge, and rendered its refusal by the trial court error. According to this tendency of the evidence, when the engineer first saw deceased on the trestle the engine was 150 feet from the west end of the trestle, which was from -120 to 180 feet in length, and the deceased was- at the east end, walking towards the engine, having come into view on the trestle suddenly from a side path that ran up to the east end of the trestle. The engineer immediately blew the whistle, which attracted the attention of the deceased, and caused him to see the engine approaching. He was then at the east end of the trestle where he could have gotten off without trouble or danger, but instead of getting off, he commenced to run across the trestle directly in the face of the engine. After running towards the engine for some distance he stopped, paused a moment, and then went back two or three steps to a bent cap on the trestle. During this time, while the deceased was running towards the engine, the engineer did all he could to bring the engine to a stop, having shut off the steam, reversed the engine, applied the vacuum brake, and used sand, but was unable to stop before reaching deceased, who was struck by the outer corner of the pilot and knocked off. The engine had a tender attached, but no cars, and was running at a speed of from fifteen to twenty-five miles an hour at the time deceased was first seen on the trestle, and could have been stopped within a distance of from 100 to 250 feet. There was evidence tending to support this charge in all its hypotheses. Assuming the truth of these facts, as the jury might have done, the engineer might innocently and reasonably have delayed preventive effort until it was too late to avoid the injury, without being guilty of willfulness and wantonness, the equivalent of intentional wrong or willingness to sacrifice human life. The distance between the engine and deceased, when the latter was first seen, was from 270 to 330 feet, and the engine was running from 22 to 36 feet per second. When the deceased was first seen, being in such a position on the trestle that he could have readily gotten olí and out of the way of danger, the engi: neer had a right to act on the presumption that he would do so, and therefore owed him no duty to stop the engine immediately. — Central R.R.&B. Co. v. Vaughan, 93 Ala. 209. The unexpected — not reasonably to be anticipated — conduct of the deceased, in attempting to run across the entire length of the trestle in the face of the engine, the engineer Could not foresee. He blew the whistle to warn deceased of his danger, attracted his attention thereby to the approaching engine, and then deceased concluded to try to run' the length of the trestle, from 120 to 180 feet, while the engine was running 150 feet. The blowing of the whistle, the recognition by the deceased of its meaning and of his danger,- and the forming of this conclusion in his mind, and his starting to accomplish his purpose, and the realization by the engineer of his intention, so unusual under such circumstances — all these things could not- have happened in an instant of time, and during the interval the engine Avas running at a speed of from 22 to 36 feet a second. Until the engineer actually realized that deceased intended to run across the trestle, no duty devolved on him to try to stop the engine. How many seconds elapsed betAveen his first motion to blow the whistle and his realization of this intention of deceased? If five seconds, and if the trestle was 120 feet in length, and the speed of the engine Avas 36 feet a second, the engine ran 180 feet before it became the duty of the engineer to make any effort to stop it, and Avas then within less than 90 feet of deceased, a distance Avithin which, according to the evidence, it Avas impossible to stop. These considerations lead us to conclude that the facts hypothesized in the charge, considered in connection Avith this tendency of the evidence, justified the last clause of the charge— “but the engineer, acting- in good faith and with reasonable prudence, might delay using preventiAre effort until too late to avoid the collision, in Avhich event the railroad company would not be liable.”

The defendant requested the court to charge the jury, that they were not “authorized to infer that the engineer saw Ora L. Bush on the trestle merely from the facts that the track was straight for a long distance, and the view of the track unobstructed, and the engineer was in his seat looking.ahead on the track, and that there Avas nothing to prevent the engineer from seeing a person on the track.” While Avantonness on the part of the engineer cannot be predicated on the mere fact that he ought to have seen deceased on the trestle, or on anything short of actual knowledge, yet this actual knowledge need not be positively and directly sliOAvn, but, like any other fact, may be proved by sliOAving circumstances from Avhich the fact of actual knowledge is a legitimate inference. Otherwi se, in cases of this character, this ' fact could neAer be proved except by the testimony of the engineer himself. Certainly the facts that the road Avas straight for a long distance, the view of the track unobstructed, and the engineer Avas in his seat looking ahead along the track, and there Avas nothing to prevent him from seeing a person on the track a few hundred feet ahead, are relevant and admissible for the purpose of proving that he did see such person, and may properly be submitted to the jury on this issue; and Avhile no presumption arises from these facts that the engineer did see the person on the track, yet this maybe inferred from these facts by the jury, whose province alone it is to decide the weight to be given to facts legally in evidence and their effect on an issue which they are admitted to prove. A contrary conclusion Avas apparently reached in Ga. Pac. R’y Co. v. Ross, 100 Ala. 490, solely upon the' authority of the previous case of Nave v. A. G. S. R. R. Co., 96 Ala. 264. An examination of the latter case, however, does not sustain this conclusion, since the evidence in that case did not show that the engineer toas looking ahead along the track, and all that was there decided Avas, that inasmuch as it Avas not the duty of the engineer to keep a lookout for a person on the track, the fact that he could have seen him if he had looked did not authorize the inference that he did look and see him. We are of the opinion that this charge Avas properly refused.— Birmingham Railway & Electric Co. v. Smith, 121 Ala. 352.

The plaintiff propounded, to defendant interrogatories for a discovery, under tlie provisions of the statute (Code of 1896, § § 1850-1858), answers to which were made by the engineer. When these answers were offered in evidence by the plaintiff, defendant objected to their introduction on the ground that defendant could not, in a proceeding of this character, be legally and constitutionally compelled to answer the interrogatories. The argument is, that the damages recoverable in this action, instituted under the provisions of the act entitled “An act to prevent homicides” — now forming section 27, Code of 1896 — providing that a personal representative may maintain an action for the wrongful act or omission or negligence of any person, whereby the death of his testator or intestate was caused, are in the nature of a penalty; and that the defendant in such actions is protected, both by the rules applicable to discoveries, and by constitutional guaranty, against any compulsory process to compel him to answer any questions, the answers to which would have a tendency to incriminate him, or to expose him to a penalty or a forfeiture. The Supreme Court of the United States has held that proceedings for penalties and forfeitures are within the provisions of the fifth amendment to the federal constitution that no person shall be compelled in a criminal case to be a witness against himself; and that this provision is a protection against compulsory self-disclosure in any proceeding, civil or criminal, of matters which tend to incriminate the witness, or to expose him to a penalty or forfeiture. — Counselman v. Hitchcock, 142 U. S. 547; Boyd v. United States, 116 U. S. 616. While the decision of this court is entitled to great weight as authority in the construction of similar provisions in the constitutions of the several States, it is not binding on the State courts, because the fifth amendment to the federal constitution has no application to proceedings in the State courts. — Thorington v. Montgomery, 147 U. S. 490. These constitutional provisions, thus construed, simply declared the ancient rule of the common law, and prohibited any change in the rule by legislation. It is also an ancient and universal rule that a court of equity will not entertain a bill to compel a discovery in aid of an action to recover a penalty or forfeiture, or of any action not purely of a civil nature. — 2 Story Eq. Jur., § 1494. And tlie construction given to our statutory provisions for a discovery at law is, that they created a right to a discovery in civil suits at law which, in the absence of statute, could be obtained only in equity. — Cain Lumber Co. v. Standard Dry Kiln Co., 108 Ala. 346. If the damages recoverable in an action of this character Avere, strictly speaking, a penalty imposed by Iuav, Ave Avould be inclined to give to our constitutional provision on the subject the same construction that has been placed on the similar provision of the federal constitution, and to hold that the defendant could not be compelled, even by statute, to give or furnish evidence in aid of a recovery against it. But Avhile the damages recoAmrable are undoubtedly,’ under our former rulings, punitive in their nature, and not compensatory, they are not, in a strict sense, a penalty, nor is the action penal, or quasi-criminal, Avitliin the meaning of the constitutional provisions as above construed. The statute is remedial, and not penal, and Avas designed as Avell to give a right of action Avhere none existed before, as to “pivwent homicides,” and the action given is purely civil in its nature for the redress of piúvate, and not public Avrongs. See Richmond & D. R. R. Co. v. Freeman, 97 Ala. 289. The question presented is, therefore, one of statutory, and not of constitutional construction, and in this aspect it was considered and decided adversely to appellant’s contention in L. & N. R. R. Co. v. Hall, 91 Ala. 118, where it Avas held that the only exception allowed by the statute, Avith respect of the nature of the interrogatories required to be ansAvered by the party, was that contained in section 3858, Avhich provides that “the party is bound to answer all pertinent interrogatories, unless by the answer he subjects himself to a criminal prosecution.” It cannot be contended that the defendant corporation could be subjected to a criminal prosecution on account of these answers, and as no objection Avas made by the engineer, or by any one authorized to represent him, he must be treated as having waived any privilege to which he may have been entitled. The privilege is purely a personal one, and can be claimed only by the witness, or by some one authorized to protect his interests, and unless so claimed is waived. The trial court did not err in overruling the objection to the introduction of these answers.

The other assignments of error relating to the evidence are not insisted upon or discussed by counsel in their brief. We have examined each of the assignments, however, and fail to discover any error committed by the court in the admission of evidence.

For the errors pointed out, the judgment must be reversed and the cause remanded.

Note : The foregoing opinion was partly prepared by Chief Justice Bbickell before his retiring from the bench.