Opinion
8 Div. 203.
October 14, 1920. Rehearing Denied December 18, 1920.
Appeal from Circuit Court, Lauderdale County; C. P. Allmon, Judge.
Eyster Eyster, of Albany, and Andrews Peach, of Sheffield, for appellant.
The evidence does not establish a case of intestate's injury as a proximate result of negligence alleged in the various counts or any of them. Witnesses other than those testifying on the former case testified in this, and hence 201 Ala. 469, 78 So. 375, is not conclusive of this contention. 164 Ala. 110, 51 So. 147; 166 Ala. 544, 51 So. 996; 164 Ala. 92, 51 So. 385; 161 Ala. 413, 49 So. 860; 129 Fed. 531, 65 C. C. A. 226, 70 L.R.A. 264; 129 Ala. 561, 30 So. 571; 120 Ala. 543, 24 So. 955; 97 Ala. 168, 11 So. 886; 139 La. 1104, 72 So. 752; 179 U.S. 659, 21 Sup. Ct. 275, 45 L.Ed. 361. The judge should not have submitted the case to the jury on this theory. 173 Ala. 644, 51 So. 821. Under all the evidence the intestate was guilty of assumption of risk. 245 U.S. 441, 38 Sup. Ct. 139, 62 L.Ed. 385; 74 W. Va. 666, 83 S.E. 54, L.R.A. 1915C, 432; 164 Ala. 49, 51 So. 169; 241 U.S. 229, 36 Sup. Ct. 588, 60 L.Ed. 970; 241 U.S. 237, 36 Sup. Ct. 592, 60 L.Ed. 977; 233 U.S. 492, 34 Sup. Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475. Court should have given charge G. 194 Ala. 51, 69 So. 127. Also charge 29. 173 Ala. 641, 55 So. 821; 181 Fed. 95, 104 C.C.A. 151, L.R.A. 1917E, 1. Counsel discuss other assignments of error, but without further citation of authority.
Callahan Harris, of Decatur, for appellee.
Most of the assignments argued have been settled contrary to appellant's contention on a former appeal in this case. 201 Ala. 469, 78 So. 375. As to the duty of the head brakeman on a descending car in such cases, see 117 Ala. 231, 23 So. 797. There was no such assumption of risk as is attempted to be asserted by the appellant. 201 Ala. 469, 78 So. 375; 199 Ala. 377, 74 So. 581; 241 U.S. 462, 36 Sup. Ct. 620; 241 U.S. 210, 36 Sup. Ct. 599, 60 L.Ed. 956. There was no error in the court's oral charge. 194 Ala. 51, 69 So. 128; 241 U.S. 485, 36 Sup. Ct. 630, 60 L.Ed. 1117, L.R.A. 1917F, 367. Counsel discuss other assignments of error, but without further citation of authority.
The suit by a father for the death of a son was under the federal Employers' Liability Act (8 U.S. Comp. St. 1916, §§ 8657-8665).
The former appeal (Porter v. L. N.) is reported in 201 Ala. 469, 78 So. 375. The several questions for the jury were declared to be: (1) Whether plaintiff's deceased son (L. O. Gulley), a brakeman, falling under the wheels of cars making a gravity switch in the dark, fell off a car or was thrown off a car by a sudden impact with a stationary car; (2) whether Hollis, the brakeman riding on the leading car of the string (on which Gulley was also a brakeman) making a gravity switch in the dark, was negligent in allowing a collision with a stationary car, or was negligent in failing to retard the speed of the string of cars, thereby diminishing the force of the impact with the stationary car; (3) whether the head brakeman (McCandless) in charge of the gravity switch of a string of cars on which Gulley was riding in the dark was negligent in telling the operating brakeman that there was a stationary car near the platform, when in fact that car was much nearer the string making the gravity switch, whereby the collision occurred at a time and under circumstances that the operating brakemen riding thereon (Hollis and Gulley) were not expecting it, and therefore not prepared therefor. The evidence in the present record justifies each of these rulings and it would subserve no good purpose to repeat the same. There was no error in refusing defendant's motion for new trial based on insufficiency of the evidence to warrant submission to the jury and to support the verdict.
On former appeal a charge that sought to instruct the jury that plaintiff's intestate assumed all the ordinary risk incident to the manner in which his fellow servants discharged their duties in the operation of making the gravity switch, "which would comprehend a risk of a negligent discharge of duty by a fellow servant," was held properly refused under that evidence. We are of opinion that, under defendant's pleading and evidence, or the reasonable inferences therefrom, a jury question was presented on the second trial. Amerson v. Corona C. I. Co., 194 Ala. 175, 69 So. 601; Tobler v. Pioneer M. M. Co., 166 Ala. 482, 517, 52 So. 86. As a witness, the brakeman (Hollis) riding on the leading car said:
"I had been running on this train about six years. I had never made the run with L. O. Gulley. He was not exactly a regular brakeman. I had been running regularly. * * * After the engine and nine cars had been cut off and put in on the scale track, * * * that left Mr. Gulley and me in charge of the seven cars. The seven cars were to be placed on the house track. That is the track that runs by the depot and the platform. I was stationed on the head end of the seven cars, and Mr. Gulley was near the rear end. The track was descending, and the cars would just roll down. As the cars were rolling in from the main line on to the house track, McCandless said to Gulley and me there were some cars down by the platform somewhere. * * * I was on the front end of the cars. The string of seven cars stopped before it got in on the house track. At that time I was on the first or second car. I handled the brakes on the first and second cars. Gulley was on the fifth car from the head end. The brake on that car was on the north end — that is, the rear end. When the cut of cars stopped I released my brake. McCandless assisted Mr. Gulley to release his brake. The cars then started on. * * * They did not get any speed. We kept them under control. Of course, they got a little faster, but didn't run over two miles an hour. They ran six or eight car lengths, and coupled into another car. I did not see the other car before we hit it. I was the front brakeman. I was setting the brake. I don't know which way I was looking when it hit. * * * Just before that I couldn't say where I was looking. When the cut of cars coupled into the other car, it made a little jar; it wasn't an unusual jar in coupling."
And witness Olive testified that —
"The platform is on the north end of the depot, and it is a good big platform. * * * They would often switch cars on those tracks. They would want to run some cars on one track and some on another, and it is all down grade, and they would throw the switch and they would roll in there themselves down grade. * * * Cars are not stationed around on that track all the time along there. Cars would generally be down about the depot on the house track. It was customary to leave cars on that house track north of the depot so they could move them down by the depot and others would be moved off from the depot by force of gravity. I saw this every day."
Neither witness said it was customary to leave cars 330 to 360 feet or more north of the corner of the "big platform" located "on the north end of the depot." When this evidence is so considered, the question of assumption of risk becomes one for the jury. The contract of his employment under which Mr. Gulley labored as an assistant or sub-brakeman (under McCandless or Hollis, either or both) did not involve him in any general assumption of risk from the negligence of such coemployees. If otherwise, the statute (federal Employers' Liability Act) declaring, in effect, that the employee may recover upon showing that one of the co-operating causes of his injury was a negligent act or omission of a coemployee, would be inoperative. Nor. Pac. v. Maerkl, 198 Fed. 1, 117 C.C.A. 237; L. N. v. Fleming, 194 Ala. 51, 62, 69 So. 125; Sou. Ry. v. Fisher, 199 Ala. 377, 380, 74 So. 580; Sou. Ry. v. Peters, 194 Ala. 94, 69 So. 611; Porter v. L. N., supra; L. N. v. Wright, 202 Ala. 255, 80 So. 93. The distinction between assumption of risk and contributory negligence is made in Seaboard Air Line v. Horton, 233 U.S. 492, 34 Sup. Ct. 635, 58 L.Ed. 912, L.R.A. 1918E, 882, Ann. Cas. 1914C, 1282; Yazoo M. V. v. Wright, 235 U.S. 376, 35 Sup. Ct. 130, 59 L.Ed. 277.
The foregoing doctrine of assumption of risk is sustained by the Supreme Court of the United States in Chesapeake Ohio v. De Atley, 241 U.S. 310, 316, 36 Sup. Ct. 564, 566 ( 60 L.Ed. 1016), where Mr. Justice Pitney observed of "an instruction upon the question of assumption of risk, dealing solely with the ordinary hazards of the employment, and not pointing out that a different rule must be applied with respect to an extraordinary risk attributable to the engineer's negligence," that it would probably have confused and misled the jury. Again in Chesapeake Ohio v. Proffitt, 241 U.S. 462, 468, 469, 36 Sup. Ct. 620, 622 ( 60 L.Ed. 1102), it was said:
"Negligence in the doing of the work was the gravamen of plaintiff's complaint, in his declaration as in his evidence, and defendant was not entitled to an instruction making the pursuit of a customary system decisive of the issue, without regard to whether due care was exercised in doing the work itself. Even if plaintiff knew and assumed the risks of an inherently dangerous method of doing the work, he did not assume the increased risk attributable, not to the method, but to negligence in pursuing it."
That is to say, the employee "assumes the risk normally incident" to his employment, not such a risk as may arise from the failure of some other employee to use due care so as to enable his coemployee to discharge the duties of his employment without undue peril. Charges requested by defendant on a contrary assumption were properly refused, for example, charge No. 36.
The first exception to the oral charge, which we denominate A, was in accord with the foregoing authorities. It is a strained construction to say that, when referred to the whole evidence, the jury was not instructed and did not understand that McCandless, as the brakeman of the defendant acting within the line of his employment, and not as an individual acting outside of his employment, misled plaintiff as to the location of the car with which the string of cars collided, and that the defendant was thereby guilty of the negligence proximately causing the injury to plaintiff's intestate. The instruction of the court only said to the jury that, if the defendant acted through McCandless, its brakeman, and he negligently gave the misleading information to the brakeman in charge of the string of moving cars as to the location of the standing car and the proximate cause of the injury declared upon, there was no error committed in this instruction to the jury.
Appropriate assignments of error are based on the two statements of the court in the oral charge to which exceptions were reserved, as follows:
"One of the items of plaintiff's damages is compensation for physical suffering and pain and mental suffering and pain, if plaintiff's intestate did suffer that way, from the time of his injury to the time of his death. * * * In addition to compensation for physical pain and suffering and mental suffering, if you find that he suffered that way, you should compensate plaintiff for his pecuniary loss, if he suffered any pecuniary loss. Now, the true test of the measure of damages is if the jury find for the plaintiff and find that his intestate, L. O. Gulley, suffered conscious injury for an appreciable period of time, then the measure of damages which you should award by your verdict would be such a sum as would be full compensation for the mental and physical pain suffered by the deceased, L. O. Gulley, while he lived."
In this connection should be noted the whole of the oral charge, and at defendant's request the jury was instructed:
"If you believe that L. O. Gulley was unconscious from the time of the accident to the time of his death and believe that from the evidence, then you cannot award any damages on account of the physical pain and mental suffering of L. O. Gulley from the time of his injury to the time of his death."
And the charge given at plaintiff's request:
"If the jury find for the plaintiff and find that his intestate, L. O. Gulley, suffered conscious injury for an appreciable period of time, then the measure of damages which you should award by your verdict would be such a sum as would be full compensation for the mental and physical pain suffered by the deceased, L. O. Gulley, while he lived; and to this sum should be added the present worth of the amount which it is reasonably probable the deceased would have contributed to the support of his father during the latter's expectancy of life in proportion to the amount he was contributing, if any, at the time of his death, not exceeding his expectancy of life, and, in determining this, you may take into consideration the increasing wants of the father by reason of advancing age and the increasing ability of the son to supply those wants, should you find such to be the case; provided that, if you find from the evidence that the deceased was also negligent, and that such negligence proximately contributed to his death, then the plaintiff would not be entitled to full damages, but a diminished sum, bearing the same relation to the full damages that the negligence attributable to the defendant bears to the negligence attributable to both."
When the several instructions of the court are considered together or as relating to the subject of recoverable damages, it was, in effect, that recovery for pain and anguish suffered by the decedent be confined to his conscious pain and suffering and may not be awarded on account of physical pain and mental suffering for any appreciable time during which he was unconscious, between his injury and death (L. N. v. Fleming, supra; St. L., I. M. S. v. Craft, 237 U.S. 648, 35 Sup. Ct. 704, 59 L.Ed. 1160; Great Northern Ry. v. Capital Trust Co., 242 U.S. 144, 37 Sup. Ct. 41, 61 L.Ed. 208, L.R.A. 1917E, 1050; Seaboard Air Line v. Tilghman, 237 U.S. 499, 35 Sup. Ct. 653, 59 L.Ed. 1069; K. C. So. v. Leslie, 238 U.S. 599, 35 Sup. Ct. 844, 59 L.Ed. 1478; Northern Pac. v. Maerkl, supra; Capital Trust Co. v. Great Northern [1914] 127 Minn. 144, 149 N.W. 14; Moffett v. Balt. Ohio, 220 Fed. 39, 135 C.C.A. 607), and may not include pain and suffering contemporaneous with death or a mere incident thereto (Great Northern v. Capital Trust Co., supra; St. L., I. M. So. v. Craft, supra). There was no error in charging the jury as indicated. The written instruction (charge 44) given at defendant's request removed all doubt that the oral charge may have misled the jury into awarding damages for plaintiff's intestate's pain and mental suffering while unconscious, and that no damages for the "pain and suffering" plaintiff may have experienced by reason of the injury and death of his son were recoverable. The instruction of the court as to damages was not infected with reversible error. Chesapeake Ohio v. Kelly, 241 U.S. 485, 36 Sup. Ct. 630, 60 L.Ed. 1117, L.R.A. 1917F, 367.
There was no reversible error in refusing to require plaintiff to elect to recover under the counts claiming damages for the pecuniary loss suffered by intestate's father by reason of the aid and support by moneyed contributions, etc., made by the son, or under the counts claiming damages for the conscious physical and mental suffering of intestate, the proximate result of his injury. L. N. v. Fleming, supra; L. N. v. Wright, 202 Ala. 255, 80 So. 93; Great Northern v. Capital Trust Co., supra; St. L., I. M. S. v. Craft, supra; Capital Trust Co. v. Great Northern, supra; Louisville Nashville Ry. Co. v. McElwain, 98 Ky. 700, 34 S.W. 236, 34 L.R.A. 788, 56 Am. St. Rep. 385; Brown v. Chicago N.W. Ry. Co., 102 Wis. 137, 77 N.W. 748, 78 N.W. 771, 44 L.R.A. 579; Davis v. St. Louis Iron Mountain Southern Ry. Co., 53 Ark. 117, 13 S.W. 801, 7 L.R.A. 283; Stewart v. United Electric Light Power Co., 104 Md. 332, 65 A. 49, 8 L.R.A. (N.S.) 384, 118 Am. St. Rep. 410; Mahoning Valley Ry. Co. v. Van Alstine, 77 Ohio St. 395, 83 N.E. 601, 14 L.R.A. (N.S.) 893. On like authority the court committed no reversible error in refusing to give defendant's requested written charge, denominated G.
As a basis for the admeasurement of pecuniary loss suffered by a dependent (under the federal Employers' Liability Act), or as data for such purpose, evidence of the age, probable duration of life, habits of industry, means, earnings, health, skill, intelligence, and character of deceased, his reasonable future expectations, and other like facts, were admissible. L. N. v. Fleming, supra; Norfolk Western v. Holbrook, 235 U.S. 625, 35 Sup. Ct. 143, 59 L.Ed. 392. That is, it was competent to show such facts tending to aid the jury in the ascertainment of an element of damages claimed by a parent — the present worth of the amount which it is reasonably probable the deceased would have contributed to the support of the parent during the latter's expectancy in life, in proportion to the amount he was contributing, if any, at the time of death, not exceeding his expectancy of life. Roberts' Inj. Intes. Emp. p. 150, § 75; Tiffany's Death by Wrongful Act, § 168, p. 209; American R. Co. v. Birch, 224 U.S. 547, 32 Sup. Ct. 603, 56 L.Ed. 879; McCoullough v. C., R.I. P., 160 Iowa, 524, 142 N.W. 67; Thornton v. Seaboard Air Line, 98 S.C. 348, 82 S.E. 433.
There was no error in overruling defendant's objections to plaintiff's evidence covered by assignments of error 47 to 54, inclusive. The several questions and answers did not elicit information of an inestimable loss to the parent of the society and companionship or advice of the deceased son, but were of facts tending to show a material loss which can be measured by the required standard for the ascertainment of pecuniary valuation by the jury. Michigan Central v. Vreeland, 227 U.S. 59, 71, 33 Sup. Ct. 192, 57 L.Ed. 417, Ann. Cas. 1914C, 176; Patterson Ry. Acc. Law, §§ 401, 402; Roberts' Inj. Intes. Emp. p. 152, § 78 et seq.; American R. Co. v. Didricksen, 227 U.S. 145, 33 Sup. Ct. 224, 57 L.Ed. 456; Dooley v. Seaboard Air Line, 163 N.C. 454, 79 S.E. 970, L.R.A. 1916E, 185. For Lord Campbell's Act see Death by Wrongful Act, Tiffany, appendix, p. 281; analysis, p. xviii; 9 10 Vict. c. 93, entitled "An act for compensating the families of persons killed by accidents"; 27 28 Vict. c. 95.
The refusal of defendant's charge 29 may be justified as being argumentative, if not otherwise faulty.
Assignments of error are addressed to the overruling of demurrer to counts 9 and 10 as last amended. Appellant urges that said counts should have averred that intestate's suffering after his injury was "conscious" suffering. It would be an innovation in the law of pleading to hold that a claim for damages sought for physical and mental suffering must be accompanied by an averment that the party so suffering was conscious of it. We are furnished with no authority to this effect, nor do we believe that good pleading requires such specific averment. Said counts aver that plaintiff's intestate suffered great and excruciating physical and mental pain. No other averments could have been made which would so nearly describe the conscious pain and suffering of plaintiff's intestate than that it was excruciating.
The grounds of demurrer addressed to the question of generality in averment of the negligent act of defendant causing the injury are not well taken. The reporter of decisions will set out count 8 as amended. Count 10 was not subject to demurrer directed thereto. The ground of demurrer addressed to the complaint that it contained a misjoinder of action in claiming pecuniary damages resulting to plaintiff and physical pain in some of the counts and anguish endured by the intestate while conscious and in life in others has been treated above. We have answered the insistence for error on this account against the appellant on the authority of recent decisions by this court and the Supreme Court of the United States.
There being no reversible error, the judgment of the trial court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.