Opinion
5 Div. 300.
January 11, 1940. Rehearing Denied March 7, 1940.
Appeal from Circuit Court, Chambers County; Albert Hooton, Judge.
Jacob A. Walker, of Opelika, and C. S. Moon and Will O. Walton, both of LaFayette, for appellants.
The trainmen's duty to intestate approaching the crossing in the truck began when they first discovered his actual peril, not when they first saw the truck; and any violation of such duty by them, as long as same was concurrent with the negligence of intestate in going on the crossing or in dangerous proximity thereto without stopping, looking and listening, does not constitute subsequent negligence. Southern R. Co. v. Sherrill, 232 Ala. 184, 167 So. 731; Thompson Donohoo v. Mobile O. R. Co., 211 Ala. 646, 101 So. 441; 16 Alabama Digest, Railroads, 338; St. Louis S.W. R. Co. v. Simpson, 286 U.S. 346, 52 S.Ct. 520, 76 L.Ed. 1152; Southern R. Co. v. Miller, 226 Ala. 366, 147 So. 149; Johnson v. Louisville N. R. Co., 227 Ala. 103, 148 So. 822; Bailey v. Southern R. Co., 196 Ala. 133, 72 So. 67; Hines v. Champion, 204 Ala. 227, 85 So. 511; Central of Ga. R. Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Wood v. Northern Alabama R. Co., 22 Ala. App. 513, 117 So. 495; Thornton v. Southern R. Co., 199 Ala. 532, 75 So. 4; Johnson v. Birmingham R. L. P. Co., 149 Ala. 529, 538, 43 So. 33. Intestate's failure to stop and back his truck, after going on or in dangerous proximity to the track, was negligence subsequent to any alleged negligence on the part of defendants. Western R. Co. v. De Bardeleben, 226 Ala. 101, 145 So. 431; Central of Georgia R. Co. v. Barnett, 151 Ala. 407, 44 So. 392. Negative testimony that signals of approach were not given raised no conflict with the positive and overwhelming evidence that signals were given. Fayet v. St. Louis S. F. R. Co., 203 Ala. 3, 81 So. 671. The court should have charged the jury, on request of defendant, that, if they found for plaintiff, they should consider the degree of culpability of intestate and of defendants against whom they should find, and if the degree of culpability of such defendants was small the amount of damages should be reduced accordingly. Richmond D. R. Co. v. Freeman, 97 Ala. 289, 11 So. 800; Southern R. Co. v. Sherrill, supra; Louisville N. R. Co. v. Davis, 236 Ala. 191, 181 So. 695. The giving of undue prominence, in the oral charge, to the interest of the two negro defendants as affecting their credibility, was error. Louisville N. R. Co. v. Watson, 90 Ala. 68, 8 So. 249; Roberson v. State, 175 Ala. 15, 57 So. 829; Hart v. State, 28 Ala. App. 545, 190 So. 95; 18 Alabama Digest, Trial, 187(3), 210(4), 236(3), 244, 125(2); 6 Alabama Digest, Criminal Law, 757(5), 785(9), 811. The instruction in the oral charge to bring in a verdict against all the defendants for $50,000 was prejudicial error. Furhman v. Mayor, c., 54 Ala. 263; Hair v. Little, 28 Ala. 236, 248; Johnson v. State, 8 Ala. App. 207, 62 So. 328. The prejudicial effect of injecting illegal considerations into the trial through improper argument of counsel will work a reversal, although objection thereto is sustained. Birmingham R. L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann.Cas.1914C, 1037; Sinclair v. Taylor, 233 Ala. 304, 171 So. 728; Pointer v. State, 24 Ala. App. 23, 129 So. 787.
R. C. Wallace, of LaFayette, and D. G. Ewing and Clark Trawick, all of Birmingham, for appellee.
Where timely signal from train after motorist started toward crossing might have prevented accident, action based on subsequent negligence is properly submitted to jury. Southern R. Co. v. Sherrill, 232 Ala. 184, 167 So. 731; Thompson Donohoo v. Mobile O. R. Co., 211 Ala. 646, 101 So. 441. Where a person is observed on or approaching a railway track seemingly unconscious of the presence of train, the first duty is to give warning; the duty is to use all means available to avoid the accident. Illinois Cent. R. Co. v. Martin, 213 Ala. 617, 105 So. 805; Southern R. Co. v. Montgomery, 229 Ala. 456, 157 So. 854; Snider v. Alabama G. S. R. Co., 210 Ala. 119, 97 So. 209; Johnson v. Louisville N. R. Co., 227 Ala. 103, 148 So. 822. Contributory negligence, to defeat recovery for subsequent negligence, must have been a negligent act or omission with knowledge of then present and impending peril. Alabama G. S. R. Co. v. Sanders, 203 Ala. 57, 82 So. 17. An instruction assuming as a fact a matter in controversy is erroneous and properly refused. Alabama Oil Co. v. Gibson, 229 Ala. 269, 156 So. 771; Sullivan v. Miller, 224 Ala. 395, 140 So. 606. An instruction stating a mere abstract proposition of law is properly refused. Mobile L. R. Co. v. Nicholas, 232 Ala. 213, 167 So. 298; Sovereign Camp, W. O. W., v. Moore, 235 Ala. 117, 177 So. 642. An instruction calculated to confuse or mislead is properly refused. Louisville N. R. Co. v. Martin, 198 Ala. 540, 73 So. 909; Central of Georgia R. Co. v. Stephenson, 189 Ala. 553, 66 So. 495. It is not error to refuse instructions substantially covered by instructions given. Louisville N. R. Co. v. Davis, 236 Ala. 191, 181 So. 695; Louisville N. R. Co. v. Jacobson, 218 Ala. 384, 118 So. 565. Code 1923, § 9509. Misleading or incorrect instructions may be corrected by additional instructions. Louisville N. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392; Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837. It is proper to instruct the jury they may consider the interest of parties in weighing their testimony. Tucker v. State, 167 Ala. 1, 52 So. 464. In assessing damages under Homicide Statute, the jury may give punishment which, in their judgment, evidence authorizes not exceeding the sum sued for. Southern R. Co. v. Sherrill, supra. Where the testimony is conflicting the case or issue is for the jury, and the affirmative charge should not be given. Pollard v. Rogers, 234 Ala. 92, 173 So. 881; Aiken v. McMillan, 213 Ala. 494, 106 So. 150. To justify a reversal because of attorney's argument, the court must conclude that substantial prejudice has resulted. Birmingham E. Co. v. Mann, 226 Ala. 379, 147 So. 165; Jefferson County Burial Soc. v. Scott, 226 Ala. 556, 147 So. 634.
This is an action against the receiver of the Central of Georgia Railway Co. and some of its servants for the wrongful death of the plaintiff's intestate. The trial court eliminated simple, initial negligence upon the idea that the plaintiff's intestate was guilty of contributory negligence. The case was therefore tried on the question of subsequent negligence on the part of the defendants and the subsequent or concurrent negligence of plaintiff's intestate, the issue being whether or not the servants of the railway were guilty of negligence after a discovery of the intestate's peril or whether or not the intestate continued his attempt to cross the track after the discovery that the car was approaching the said crossing.
It appears that the railroad car that collided with or struck the intestate's truck was being pushed by the engine and that said car may have been an obstruction to the view of the enginemen, and a flagman or brakeman was stationed on top of said car as a lookout and as a means of warning to the enginemen. The said brakeman, John Hart, alias Snow detailed the movements of the intestate from the time he first saw him until the collision, and the jury could well infer that the intestate never saw or heard the train from the time he got in his truck and reached the track. It was also a question for the jury as to whether this witness gave timely signals to the engineer after the discovery that the intestate was not aware of the approach of the train. He testified that he commenced hollering to the engineer, but he, a question for the jury, must not have relied on the carriage of his voice alone and could have probably given warning by flagging signals also, and this evidence alone was sufficient to carry the case to the jury and justify the refusal of the general charge for the defendants.
It was also a question for the jury as to whether or not the engineer did all proper and necessary things to avoid the injury after the fireman warned him of the danger. He may have applied the brakes, but it was open for the jury to find that a sharp blast of the whistle then and there may have warned the intestate. There was a conflict in the evidence as to the blowing of the whistle. Southern Railway Co. v. Sherrill, 232 Ala. 184, 167 So. 731, and cases there cited.
The first assignment of error argued in brief of counsel is the action of the court in refusing the motion for a new trial, but we feel that the case can be more orderly and properly treated by disposing of the other insistences of error for, if they present reversible error, we do not reach the question of the motion for a new trial. We do not wish to put the cart before the horse or the car before the engine, as was done in this case.
We have examined the rulings on the evidence and find no reversible error thereby presented and the appellants' exception to same is so plainly without merit and so elementary that it can serve no useful purpose to discuss same.
The trial court not only sustained the objection to the argument of plaintiff's counsel embraced in the 14th assignment of error but affirmatively instructed the jury not to consider same, and we think it was sufficiently eradicated.
There was no error in the exceptions to the oral charge as corrected by the trial court. Assignments 15, 16, 17 and 18.
There was no error in refusing the defendants' requested charge 1. It was a question for the jury as to whether or not the plaintiff was entitled to recover. Likewise, there was no error in refusing defendants' charge 2 as it included all the defendants.
Charge 6, refused the defendants, was without error. It was a question for the jury as to whether or not John Hart gave sufficient and timely notice to the engineer as to the peril of the intestate.
Charge 25, if not otherwise faulty, was abstract.
Charge 28, refused the defendants, asserts the law correctly as to contributory negligence as there hypothesized, but its refusal was of no injury to the defendants, as the court, in effect, ruled that the intestate was guilty of contributory negligence which precluded a recovery as for initial negligence of the defendants.
Charge 39, refused the defendants, if not otherwise faulty, was misleading as it was a mandatory instruction to the jury that they must consider the degree of culpability of the intestate and the defendants, and should reduce the amount of damages assessed against them accordingly. This charge was evidently intended to come within the influence of Louisville N. R. Co. et al. v. Davis, 236 Ala. 191, 181 So. 695, and Southern Railway Co. v. Sherrill, 232 Ala. 184, 167 So. 731. Those cases were dealing with the question of punitive damages upon a motion for new trial and not with special instructions to the jury.
There was no error in refusing the motion for a new trial, and the judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.