Armstrong v. Montgomery Street Railway Co. , 123 Ala. 233 ( 1898 )

McCLELLAN, C. J.

The first count avers that plaintiff’s intestate was a passenger on one of defendant’s street cars when he received the injuries which caused his death, and theréby shows the duty the defendant was under to conserve the safety of the intestate. This duty having been thus shown, the averment of a failure to perform it — of the negligence of defendant whereby the intestate came to his death- — though very general — viz.: “Said defendant then and there so negligently conducted said business that by reason of such negligence plaintiff’s intestate received personal injuries which caused his death” — was quite sufficient under the rule that has been long established, and has been many times reaffirmed in this court.—Louisville & Nashville Railroad Co. v. Jones, 83 Ala. 376; Bessemer Land & Improvement Co. v. Campbell, 121 Ala. 50, and authorities there cited; Louisville & Nashville Railroad Co. v. Orr, 121 Ala. 489; Memphis & Charleston Railroad Co. v. Martin, 117 Ala. 367, and cases there cited. The demurrer to this count for the generality of its averment of negligence should have been overruled.

The 6th count was equally free from the objections taken by the demurrer to it, and the court erred in holding it subject to them and bad.

It has been held that -a complaint under certain clauses of the Employer’s Liability Act should aver the name of the employe whose negligence is counted on,» or aver that his name is unknown to the plaintiff when that is a fact. This ruling was expressly predicated upon the consideration that the party injured would ordinarily have better opportunity than the common employer to know the name of the negligent employe under certain of the subdivisions of that act, as, for instance, where the injury was the result of compliance with orders-under sub-division 3 of section 1749. But it has 'also been held that it is not necessary to aver the name of the alleged negligent employe when the injured party has not such better opportunity of knowing it, as, for instance under sub-division 1 of that section. McNamara et al. v. Logan, 100 Ala. 187; Woodward Iron Co. v. Herndon, 114 Ala. 191. Applying the same considerations to a passenger, the conclusion must be from his casual and temporary relations to the carrier’s employes that he is not in a position to be better informed than the employer as to the name of an alleged negligent employe; and it has never been held or supposed, and is not the law that when he is injured through the negligence of an employe and sues to recover damages therefor he should aver the name of the employe or liis ignorance of it.

One of the unnecessarily numerous counts in this complaint, the 12th, is as follows: “The plaintiff claims of the defendant the sum of thirty thousand dollars as damages for this: That on the 25th day of May, 1898, the defendant, engaged in operating by electric force a street railway, as a common carrier of passengers in the city of Montgomery, negligently failed to employ a conductor to aid in operating one of its street cars on Avhich plaintiff's intestate Avas at the time a passenger, and negligently operated said car by a motorman alone; and negligently employed one J. C. Jolly, who Avas not a skillful person for such employment, as a motorman to operate said street car; said Jolly negligently operated and conducted said car; by reason of Avhich several negligent acts and omissions on the part of the defendant, its agents and employes, plaintiff’s intestate on said date received personal injuries from which he came to his death.” On defendant’s motion the court' struck from this count the words “negligently failed to employ a conductor to aid in operating one of its street cars on which plaintiff’s intestate was at the time a passenger.” This was error. We understand the count to charge that each one of the acts and omissions therein stated was a negligent act or omission, and that they all combined together and coalesced to produce the result complained of, each being laid conjunctively with the others and intestate’s death being ascribed to the joint causation of them all. This is unnecessary particularity of averment, and by it the plaintiff took upon himself the heavy burden of showing that the injury-resulted not from one or more of the negligent acts and omissions alleged, hut from all of them operating together to the disaster complained of; hut the count was not thereby rendered objectionable.—Highland Avenue & Belt Railroad Co. v. Dusenherry, 94 Ala. 413; Kansas City, Memphis & Birmingham Railroad Co. v. Burton, 97 Ala. 240, 249; Louisville & Nashville Railroad Co. v. Mothershed, 97 Ala. 261. And it cannot be said as matter of law that it was or was not negligent in the defendant to operate its street cars without conductors, or this car without a conductor. The count in question having averred that the failure to have a conductor on this car was negligence, the averment should have been allowed to remain in it, that evidence might be adduced upon it for the jury’s consideration in determining, first, whether such failure was negligence, and, second, if it was, whether tliat negligence combined with the other alleged negligent acts and omissions to produce intestate’s death.

It is not averred in the third plea that the intestate did not pull the cord and ring the bell therein spoken of, and no negligence is by the plea imputed to him in that connection. Of course, if he was not negligent in respect of these appliances the fact that the car was equipped with them is of no pertinency in the case as it was presented by the complaint at the time this plea" was interposed; and plaintiff’s motion to strike these averments from the plea should have been granted. It may be that these facts would have been evidentially competent under the plea of not guilty to the 12th count had the averment in that count of the negligent failure of tlie defendant to have a conductor on that car not been stricken out of that count, as tending to show that the appliances of the car were such as that it was unnecessary to the safety of passengers to have a conductor; but surely the passenger cannot be held to have been guilty of contributory negligence upon the.mere fact of the presence of the cord and bell. And what is here said applies to like averments in plea 4.

A rule of the street railway company that passengers must not leave its cars while they are in motion is a reasonable rule; but a passenger cannot be charged with negligence for its non-observance unless he knew of it, though conduct in violation of the rule may be negligent without reference to it. Plea 4 bases a charge of negligence against intestate upon the violation of this rule without regard to whether the violative act would have been a negligent act in the absence of the rule, and it does not aver that he knew of the rule. The plea was therefore bad.—Brown, Admr. v. Louisville & Nashville Railroad Co., 111 Ala. 275. Had the plea averred intestate's knowledge of the rule, its further averments as to appliances for use of passengers in stopping cars might have been proper as going to show the reason* ableness of the rule.

It is unnecessary to review the court’s ruling on the demurrer to the replication to plea 4.

Whether the intestate was guilty of negligence in getting upon the running board., preparatory to alighting, while the car was in motion was a question for the jury.—Watkins v. Birmingham Railway & Electric Co., 120 Ala. 147; 24 So. Rep. 392, and cases there cited; Birmingham Railway & Electric Co. v. James, 121 Ala. 120.

/ As to the intestate’s injuries and death the testimony, ' given by the physician who attended him, was as follows : “On examination I found that he had ah injury to the middle and ring fingers of the right hand; that the first joint on each finger had been crushed, lacerated, and he complained to be suffering a great deal of pain, and seemed to be suffering somewhat from shock. There Avas also a slight Around on the scalp. It was a cut about two inches long, liad bled some, and the blood had trickeled down the side of the head on his neck. I examined the wound on his head and found that it was simply a scalp wound, there was no injury to the bone, and I proceeded to examine his hand and found that the first joint of the first and ring fingers had been fractured and the soft tissues, skin and tendons, etc., had been much lacerated; that is, the skin torn up and some of the soft parts protruding. It was night. I had a kerosene lamp. I decided to dress the Avounds antiseptically. I got some hot water, some carbolic acid, carbolized solution of the ordinary strength, and washed the wounds very thoroughly — they had been ground in sand. I cleaned the Avounds off and trimmed the ragged edges so as to bring the skin back, to bring the wound together as best I could. Mr. Armstrong [the intestate] complained also of being injured internally, in his stomach. Of course, I had to take his word for that. There was no sign. I continued to treat Mr. Armstrong, visiting him twice a day after that until his death, AAdiich occurred not less than a week nor more than ten days after I was called to see him. His death Avas due to complications resulting from the injuries described. The direct cause of his death Avas septicemia, or blood poisoning, produced by the wounds on his fingers as already described. He complained seAreral times of pain in his side and stomach. At the time of his death his boAvels Avere very much distended Avith gas AAdiich caused paralysis of the boAvels resulting from the septic infection AAdiich I have mentioned. This paralysis of the bowels began about tAvo days before his death, and Avas the result of septic infection caused by the Avounds in the hand. The boAvels could not be moved the last two'days of his life. 1-Iis death Avas caused by septicemia, septic infection, the common name for AAdiich is blood poisoning. The septicemia began some days after I Avas first called to see him. He had no Avounds except those on the head and hand, and no other positive evidences of hurt on his body as far as I could see. Those Avounds did not directly produce death. They produced septicemia which caused his death. By septic infection is meant poisoning of the system from germs, or products of germs, introduced into the blood through wounds, or other sources; it is a paralysis of the system due to the presence of germs or particles of germs in the system.” Upon this evidence it is sought to justify the affirmative charge for the defendant, which was given by the trial court; the contention being that, if believed by the jury, it showed that the injury sustained by the intestate was not the proximate cause of his death, but that his death was the result of an independent, intervening cause, towit: the septicemia, or’blood poisoning which set in or began to infect his system several days after the injuries were received. It is difficult to conceive how this position can be even plausibly supported. It is clear on this evidence that intestate’s death resulted in direct line and sequence of causation from the.injuries he received in the fall from the car. So far from there being an independent, superceding or responsible cause of death other than these injuries, there is absolutely no other cause shown or hinted at in this evidence. The fall produced the injuries; the injuries produced blood poisoning, and the hlood poisoning produced death. There was no break in the chain of causation from the alleged negligent act to the death of intestate. The blood poisoning was not an independent cause. It was not a superseding cause. It was itself a result, or, perhaps more accurately, a mere development of the injuries. It isMiot an important consideration, even if it be a fact, that hlood poisoning is not a usual and ordinary result or development of wounds of the character inflicted upon the intestate. It is not of consequence that the defendant or its motorman did not have the infection of septicemia in contemplation when the intestate was injured. They did not, we take it, have in contemplation even the mashing of his hand, and if they did they would be guilty much beyond the charges made, by this complaint. The logical rule in this connection, the rule of common sense and human experience as well, (if indeed there can be a difference between a logical doctrine and one of common sense and experience, as some authorities appear to hold), is that a person guilty, of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind. — 1 Bher. & Red. Negligence, § 29. That there was a reasonable possibility of blood poisoning being developed or produced by the wounds which intestate received admits of no controversy. That blood poisoning did result from the wounds is to like degree clear on the evidence; and confessedly blood poisoning.produced death. Death was, therefore, -within the range of responsibility for the negligent act which inflicted the wounds; and instead of the affirmative charge for defendant being justified on the theory that the evidence showed that death did not result from the injuries, the court might -well have instructed the jury to find that the injuries did produce the death if they believed the evidence.

We cite several authorities, but we need refer especially to one only, that of Ginna v. Second Avenue Railroad Co., 67 N. Y. 596, which is on all fours witli the case at bar in the respect, under consideration; the intestate, for whose death that action was prosecuted, was thrown from the platform of a street car through the negligence of the driver. “By the fall,” said the court, “his arm was fractured above the elbow, the broken fragments of the bone protruding and wounding the flesh and the skin. That resulted in the development of a poisonous discharge which remaining in the wound was absorbed by the blood, and in three weeks afterwards he died from the effects of the poison. It was not claimed upon the trial that the injury had been improperly treated or that death was the result of it [improper treatment]. And the position could not lmve been reasonably taken in view of the evidence of the physician, for he testified that the bones had been put in their proper position, and that the physicians of the hospital, of which the witness was one, would probably have treated the injury in the same wray it had been done before the deceased went there. More attentive. treatment might have saved the life of the young man, but its necessity was not apparently suspected. He Avas subjected to that AAdiicli followed and was designed to be proper by the wrongful act of the defendant. That was the cause which placed his life in jeopardy, because it produced the wound whose poisonous discharges resulted in his death. No other Avrong or misconduct than that of the defendant Avas shown to have intervened; that caused his death Avitliin the meaning of the proAdsions of the statute relating to this class of (‘ases, by producing the bodily condition rendering it under the circumstances inevitable. It Avas the operative as well as the proximate cause of death, and that Avas sufficient to render the defendant liable.” See also Ehrgott v. City of New York, 96 N. Y. 264; Pollett v. Long, 56 N. Y. 200; Sauter, Admr. v. New York Central & Hudson River Railroad Co., 66 N. Y. 50; Tiffany Death by Wrongful Act, § 76; 1 Sher. & Red. on Negligence, §§26 et seq; Louisville & Nashville Railroad Co. v. Jones, 83 Ala. 376.

Reversed and remanded.