6 Div. 437.
November 4, 1926.
Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.
Graham Perdue, of Birmingham, for appellant.
Plea 9, as an answer to count A, was subject to plaintiff's demurrer. Southern R. Co. v. Stewart, 153 Ala. 133, 45 So. 51; Johnson v. Birmingham R., L. P. Co., 149 Ala. 529, 43 So. 33. Charge A, given at the request of defendant, does not correctly state the measure of duty of defendant's servants after discovery of plaintiff's peril. Central of G. R. Co. v. Ellison, 199 Ala. 571, 75 So. 159. The issue made by Count B should have been submitted to the jury. Southern Ry. v. Shelton, 136 Ala. 191, 34 So. 194; L. N. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001; Southern R. Co. v. Hyde, 164 Ala. 162, 51 So. 368.
Bankhead Bankhead, of Jasper, for appellee.
Plaintiff failed to make out a case under the wanton or subsequent negligence count, and was therefore entitled to the affirmative charge. Southern R. Co. v. Hyde, 164 Ala. 162, 51 So. 370; L. N. R. Co. v. Porter, 196 Ala. 17, 71 So. 335; Southern R. Co. v. Gantt, 210 Ala. 383, 98 So. 196; L. N. R. Co. v. Rush, 208 Ala. 516, 94 So. 577; Snider v. A. G. S. R. Co., 210 Ala. 119, 97 So. 209.
The substance of count A of the complaint is that, "while plaintiff was standing by the side of defendant's track," within reach of the open swinging doors of a refrigerator car in a passing train, he was stricken and injured by one of those doors, and that this resulted proximately from the negligence of defendant's servants or agents, while acting within the line of their employment, in that they "negligently failed to use all the means at their command to prevent said door from striking plaintiff after becoming aware of plaintiff's peril of being struck by said door, when by the use of said means said door would have been prevented from striking plaintiff."
Defendant's special plea 9 sets up continuing contributory negligence on the part of plaintiff, and it is insisted that the demurrer to this plea was erroneously overruled; the objections being, to quote counsel's statement in his brief:
"(1) This plea fails to show that plaintiff committed a negligent act or omission with knowledge of the then present and impending peril of being struck by said swinging door. (2) It is nowhere sufficiently stated therein that plaintiff was conscious of being within the striking distance of said door. (3) The plea fails to assert anything with reference to the proximity of the door to him when it was seen by appellant. (4) It does not appear, except by way of the conclusion of the pleader, that the peril alleged therein was present and impending at the time set out in the said plea."
These objections are hypercritical and without merit. It is sufficient to bar his recovery on the case made by his complaint that plaintiff, a mere trespasser on defendant's right of way, saw the out-swinging doors of the car, and voluntarily stood and remained in such proximity to the passing train that he was in danger of being struck thereby, and was conscious of the peril of such a position, and negligently remained therein. This is what the plea in substance alleges, and under our decisions we think it sufficiently shows a concurrent contributory negligence — a knowledge of the specific danger, a knowledge of his exposure thereto by reason of his petition, and a negligent failure to avoid it. Grauer v. A. G. S. R. R. Co., 209 Ala. 568, 572 (4), 96 So. 915; B. R. L. P. Co. v. Ætna A. L. Co., 184 Ala. 601, 607, 64 So. 44; C. of Ga. Ry. Co. v. Blackmon, 169 Ala. 304, 311 (plea 3, p. 306), 53 So. 805.
The trial judge, in instructing the jury on subsequent negligence, at defendant's request, predicated liability upon the facts that defendant's servants knew of the peril or impending danger of the plaintiff, "and failed to exercise due care to avoid injury." It is insisted that the quoted clause is an erroneous statement of the duty in question, and should properly have been, "and thereafter negligently failed to exercise due care to avoid injury." The failure to exercise due care, under circumstances imposing the duty to do so, is in itself actionable negligence, and it is not necessary to further characterize such omission as negligent. Tenn. C. I. R. R. Co. v. Smith, 171 Ala. 251, 255, 55 So. 170. It is true the instruction lacks completeness, but in that respect, and to that extent, it is unfavorable to defendant rather than to plaintiff. Plaintiff cannot complain of this instruction.
Charge E, given for defendant, is a correct statement of the elements of actionable negligence. Tenn., etc., Co. v. Smith, 171 Ala. 255, 55 So. 170. It could not have been misleading, but, if so regarded, an explanatory charge should have been requested.
A careful analysis of the evidence demonstrates the propriety of the general affirmative charge for defendant on the wanton injury count.
Plaintiff's contention is that defendant's head brakeman, Napier, who was sitting on the tank back of the engine, and who testified that he looked back at the sides of the train before the accident, and saw no doors swinging out, must nevertheless have seen these doors swinging, if plaintiff's witnesses' testimony should be believed as to such an occurrence; and hence, knowing of that condition, and knowing also of plaintiff's proximity to the passing train, he must have been conscious, not only of plaintiff's perilous position, but also of the probability of his being struck by the out-swinging doors.
But the evidence does not tend to show that the doors were out swinging as the car approached plaintiff, and Napier's testimony is that they were not. And, if they were, their greatest reach outward, according to plaintiff's own witnesses, was 2 1/2 feet, and plaintiff's testimony is that he was standing 3 feet from the side of the train. Such a situation, if known to Napier, would not have warned him that an apparently able-bodied young man, who had stepped aside to avoid the passing train, and who, presumptively, could see as well as Napier, and was able to avoid contact with the train, was in imminent peril of being struck, and probably would be struck, unless Napier did something to prevent it. Nor is there anything in the evidence to support an inference that Napier knew that plaintiff was unconscious of danger, if there was any, and that he did not see, and would not avoid being struck, even if he was apparently within reach of the doors. Upon such evidence there could not be imputed to Napier such a reckless disregard of plaintiff's safety as was "the moral equivalent of an intention on his part to injure the plaintiff." B. R. E. v. Franscomb, 124 Ala. 621, 624, 27 So. 508, 509; Vessel v. S. A. L. Ry. Co., 182 Ala. 589, 62 So. 180; L. N. R. R. Co. v. Porter, 196 Ala. 17, 71 So. 335.
We think the verdict of the jury was in accord with the overwhelming weight of the evidence, and we find no error for reversal of the judgment.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.