Priester v. Western Union Telegraph Co.

On Rehearing.

Counsel for appellant has filed an able and lengthy brief in support of the application for rehearing which has been considered by the court. Whatever might be the opinion of this court, as to the question argued by counsel, that the question of gross negligence should have been submitted to the jury by the trial court, we do not feel at liberty to depart from what we believe to be the decision of the federal courts and the Supreme Court of Alabama construing the statute in question, and as to what is sufficient to constitute gross negligence as used in the statute in question. This court is bound by the decisions of the federal courts and of the Supreme Court of Alabama as to these questions, and we are constrained to hold that, under the decisions of the federal courts and of the Supreme Court of Alabama, there was no evidence to authorize the submission of the question of gross negligence, wantonness, or willful injury to the jury. , The term “gross negligence” has been long employed in this state as the synonym of wantonness or recklessness in defiance of probable consequences. While the difficulties of properly defining the term “gross negligence” have been pointed out by the state and federal courts, the term has been dil’eetly recognized as involving more than negligence to any degree, and as being equivalent to wantonness or that recklessness which is beyond all negligence.

The Supreme Court of Alabama has also said that the mere error of judgment as t'o the result of doing an act, or the omission of an act, having no evil purpose or intent, may constitute simple negligence, but cannot rise to the degree of wanton negligence or willful wrong or gross negligence when used as a synonym of wantonness or willful injury. L. & N. R. R. Co. v. Orr, 121 Ala. 489 , 26 So. 35 ; Lee’s Case, 92 Ala. 262 , 9 So. 230 .

The party who affirms even simple negligence, much less gross negligence, must prove it, and judges should never leave the matter to the jury where it is a mere conjecture. Seales’ Case, 173 Ala. 644 , 55 So. 821 .

There should be evidence tending to at least establish such negligence before it is submitted to the jury. Under the decisions of the federal courts and the Supreme Court of this state we are yet of the opinion that there was no evidence in this case which authorized, much less required, the trial court to submit the question of wanton negligence to the jury.

Application overruled.

PER CURIAM. Reversed and remanded, on authority of Ex parte Priester, 212 Ala. 271 , 102 So. 376 .