Opinion
7 Div. 954.
June 20, 1918. Rehearing Denied November 14, 1918.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
E. O. McCord, of Gadsden, for appellant.
Dortch, Martin Allen, of Gadsden, for appellee.
The action is brought under the second and third subdivisions of the Employers' Liability Act (section 3910 of the Code), to recover damages of the master for personal injuries to the servant. The trial was had on the general issue and the contributory negligence of the plaintiff, and the court gave the affirmative charge for the defendant. Plaintiff appeals.
The whole of the evidence is set out in the transcript and in the brief of counsel for appellant.
We are of the opinion that the trial court ruled correctly. Under our system of laws and the practice prevailing in our court for nearly 100 years, the power is vested in the court to determine whether the evidence offered tends to support the allegations of the party. The right should be cautiously exercised, but in some cases it is the duty of the court to direct a verdict when thereunto requested in writing, and a failure to do so will be error, for it is not only the right, but the duty, of the court. When the plaintiff has introduced his evidence, and it does not tend to prove his cause of action, the court may refuse to hear evidence offered by the defendant, and, if properly requested, direct the jury to find against the plaintiff; but it is only in the absence of all evidence against the defendant that the court should direct a verdict in his favor, and it is always error, and not within the discretion of the court, to leave a question to the jury in respect of which there is no evidence. If there is none to support the theory of fact assumed, the court should not let the case go to the jury; likewise, when the facts in the case are undisputed, and the evidence, with all the inferences which the jury can rightfully draw from it, does not as a matter of law have any tendency to establish the proposition which is essential to the maintenance of the action, it is the duty of the judge, if properly requested, to instruct the jury; but, if there be any evidence which tends to establish the plaintiff's cause, it is error for the court to withdraw the case from the jury or to direct a verdict. Tobler v. Pioneer Mining Co., 166 Ala. 517, 52 So. 86.
It is axiomatic to say that the plaintiff ought not to recover in a negligence case, unless he proves the negligence alleged; and he cannot recover even then, if he himself or the defendant prove that his (plaintiff's) own negligence proximately contributed to that of the defendant to produce the injury received, provided, however, this contributory negligence is specially pleaded.
It is also well-settled law in this state that all negligence is not actionable. To be actionable, it must be the breach of a duty which the defendant owed the plaintiff as an individual or one of a class. Unless there is the breach of a duty owing, there is no actionable negligence, though there be negligence. If particular acts of negligence are alleged, those particular acts must be proven, though our system of pleading permits negligence to be alleged in very general terms. If, however, the negligence be alleged specifically, it must be so proven.
Where the evidence is equally consistent with either view, the existence or non-existence of negligence, it is not competent for the judge to leave the matter to the jury. The party who affirms negligence has failed to establish it. This is a rule which ought never to be lost sight of. 1 Bailey's Personal Injuries, p. 560, § 1660. The burden is on the plaintiff to show, by the evidence, the causal connection between the negligence and the injury. A mere conjecture cannot be submitted to the jury, without evidence. 1 Bailey's Per. Inj. pp. 563-568, §§ 1672-1675, 1682, 1688, 1694; Scales v. C. I. C. Co., 173 Ala. 644, 55 So. 821.
At common law, when a right is conferred, and a corresponding duty imposed, upon a person, he is answerable to another person who sustains damage by the negligent discharge of such duty. Negligence is nothing more than a failure to discharge the duty resting upon one under the circumstances of the case. Mann v. Central Vt. R. Co., 55 Vt. 484, 45 Am. Rep. 628; Young v. Detroit, G. H. M. Ry. Co., 56 Mich. 435, 23 N.W. 67.
Negligence, in legal contemplation, does not entail a liability for every possible consequence that may ensue from the fact of its existence, but only from its natural and probable consequences. On this subject Mr. Addison, in his work on Torts (volume 1, p. 40), thus formulates the rule:
"If the wrong and legal damages are not known by common experience to be usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, and the wrong and the damage are not sufficiently conjoined or concatenated, as cause and effect, to sustain the action."
Similarly Baron Pollock states the rule in these words:
"A person is expected to anticipate and guard against all reasonable consequences, but he is not, by the law of England, expected to anticipate against that which no reasonable man would expect to occur."
The legal principle Is thus stated by Mr. Justice Dixon, in Wiley v. West Jersey R. Co., 44 N.J. Law, 251:
"The rule of law requires that the damages chargeable to a wrongdoer must be shown to be the natural and proximate effects of his delinquency. The term 'natural' imports that they are such as might reasonably have been foreseen such as occur in an ordinary state of things. The term 'proximate' indicates that there must be no other culpable and efficient agency intervening between the defendant's dereliction and the loss." Board of Chosen Freeholders of Morris County v. Hough, 55 N.J. Law, 649, 651, 28 A. 86.
"In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant. When these elements are brought together, they unitedly constitute actionable negligence." 25 Cyc. 419.
The principle announced above has been applied by this court in Birmingham R. Light Power Co. v. Jones, 153 Ala. 157, 45 So. 177, following the decision in Southern R. Co. v. Williams, 143 Ala. 212, 38 So. 1013, we said:
"Actionable negligence being a failure to discharge a legal duty to the person injured, if there is no duty there is no negligence. And even if the defendant owed the duty to keep a lookout for persons rightfully on the track, but owed none to the plaintiff because she was a trespasser, no action will lie, for the duty must be to the person injured." Sou. Ry. Co. v. Drake, 166 Ala. 544, 545, 51 So. 997.
Applying these principles to the case in hand, we feel sure that the trial court ruled correctly. If, however, we should be in error as to this, the evidence without dispute showed that plaintiff was guilty of negligence without which the injury would not have happened, and which therefore proximately caused his damages.
It results that the judgment appealed from must be affirmed
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.