Billingsley v. Nashville, Chattanooga & St. Louis Railway

Damages for Grossing Injury. 1. Master and Servant; Negligence of Servant; Evidence. — .Where the complaint alleges that the injuries were willfully, wantonly and intentionally caused by defendant’s servants while acting within the line and scope of their employment, and does not allege that they were so caused by defendant, proof of participation by defendant in such acts of the servant is not required. 2. Railroads; Grossing Accident; Burden of Proof. — Under sections 5474, 5476, Code 1907, a plaintiff makes out a prima facie case by showing an injury at such a crossing described, in a collision of two trains, and need not show negligence, as the burden was on the company to acquit itself of negligence. 3. Same; Degree of Oare Required. — Under section 5474, Code 1907, the trainmen are charged with the highest degree of diligence to ascertain that the way is clear, and will remain so long enough to allow their train to cross in safety. 4. Same; Instructions. — A charge asserting that if those in charge of a railway train brought it to a full stop within 100 feet of the street ear crossing, and if an approaching street car was more than 100 feet away, they might assume that the street car would be brought to a stop and not proceed until the way was clear, should have been qualified by the statement .that if the circumstances indicated that the street car would not stop, those in charge of the train could not assume that it would, and it was error to give it in requested form, although section 5474, Code 1907, also requires that the street car be brought to a full stop. 5. Same. — An instruction that those in charge of a train approaching a street car crossing might assume that the approaching street car would be brought to a stop before going on the crossing, unless it reasonably appeared that this would not be done, was improperly given, since it did not require the jury to ascertain that the train was brought to a stop as required by section 5474. as they could not indulge such a presumption unless they themselves complied with the statute. O. Witnesses; Impeachment; Intoxication. — Where the evidence is in conflict as to whether plaintiff was intoxicated at the time of the accident, it was competent in the issue of his condition to show that immediately after the action he was cursing and swearing in the presence of ladies; his intoxication having a bearing on his credibility as a witness. 7. Evidence; Export; Stopping Oar. — A witness not qualified as an expert is not competent to testify that there was plenty of time to stop an electric car before a collision.

Appeal from Gadsden City Court. Heard before Hon. J. A. Bilbro. Suit by John C. Billingsley against the Nashville, Chattanooga & St. Louis Railway for personal injury. Judgment for defendant, and plaintiff appeals. The facts made by the complaint are that plaintiff was a passenger on a street car, operated by the Alabama City, G. & A. Ry. Co., and that he was injured in a collision by a train of defendant with the street car on which he was a passenger at a grade crossing. Count 2 alleges the injuries to have been willful and wanton and intentionally caused by the • defendant's servants or agents while acting within the line and scope of their employment. The charges refused are as follows: To the plaintiff: (73) “The court charges the jury that if they are reasonably satisfied from the evidence that the -defendant’s servants or agents were guilty of any wantonness as charged in the complaint, then the jury may assess such -punitive damages against the defendant as in their sound discretion they may deem necessary to make an example of the defendant and to deter others from such conduct in the future, not exceeding the amount charged in the complaint.” (75) “The court charges the jury that if they are reasonably satisfied from the evidence that the defendant’s servants or agents were guilty of wanton conduct as charged in the complaint, then, however wanton, willful, or intentional may have been the conduct of those in charge of the street car, such conduct can afford the defendant no defense in this suit.” (77) “The court charges the jury that if- they are reasonably satisfied from the evidence that the conduct of the servants of the defendant, while acting within the line and scope of their employment as charged in the complaint, was of such a nature as to warrant the infliction of punitive damages, then the jury may assess punitive damages against the defendant in this case.” The following charges were given for the defendant: (35) “The court charges the jury that if they find that the employees of the defendant in charge of the freight train caused the train to come to a stop within 100 feet of the street crossing, and if they further find that, while the train was standing within 100 feet of the crossing after having been so stopped, those in charge of the said train saw the street car approaching at a greater distance than 100 feet from the crossing, then those in charge of the freight train had a right to assume that those in charge of the street car would come to-a full stop within 100 feet of the crossing, and not proceed until they knew the track was clear.” (66) “The court charges the jury that if they find that the employees of the defendant in charge of the freight train caused the train to come to a full stop within 100 feet of the street car crossing, and if they further find that this occurred while the approaching street car was more than 100 feet from the crossing, then those in charge of the freight train had the right to assume that those in charge of the street car .would come to a full stop within 100 feet of the crossing, and not proceed until they knew that the track was clear.” (69) “The court charges the jury that those in charge of defendant’s train had a right to presume that those in charge of the electric car would bring it to a standstill before going on the crossing, and unless it reasonably appeared that this would not be done, then the defendant would not be -guilty of negligence in going on the crossing, and the verdict of the jury should be for the defendant.” Where the accident happened at a crossing in a collision between a train and a street car, a person injured makes out a prima facie case by showing the collision and injury, and the burden is on defendant to acquit itself of negligence. The court therefore erred in charging to the contrary. — Secs. 5474:-76, Code 1907; N. C. & St. L. v. Wallace, 164: Ala. 216; So. By. v. Smith, 163 Ala. 186; Carlisle v. A. C. S., 166 Ala. 598. The complaint alleges wantonness to the servants or agents of the defendant within the line and scope' of their employment, and there was no necessity for the evidence to show a participation by the defendant. It was error, therefore, for the court to so charge, and for refusing to give the charges requested by plaintiff attempting to correct this error of the court. — B. R. L. & P. Co. v. Landrum, 153 Ala. 203; Freeman v. C. of Ga.; 154 Ala. 621; A. G. S. v. Jung, 161 Ala. 467. Under these authorities, and numerous others, it will be seen that every action of the court in the trial of this case was erroneous.