Kay Wilson, appellee, was employed by Planters' Warehouse and Storage Company at its cotton warehouse in Huntsville, Alabama, on June 6, 1956, the day on which the accident, the basis of this action, occurred. He had been so employed since 1919. Throughout that time Nashville, Chattanooga and St. Louis Railway Company had a spur track adjacent to a loading platform on the west side of the warehouse under a contract between it and the warehouse company, dated April 5, 1916. The appellant from time to time brought cars in and out on the warehouse spur track, a fact known to appellee. At the time of the accident appellee was engaged in cutting grass and weeds along the appellant's right of way between the spur track and the warehouse platform using a gasoline powered lawn mower. While so engaged he was struck on the hip by a freight car which the appellant's yard engine was pushing along the side track for unloading into the warehouse. Appellee's head was propelled against some part of the warehouse platform, resulting in the injuries alleged as the basis of this suit. At this particular time appellant had no lookout on this car, which we conceive to have been its duty under the circumstances. East Tennessee, V. & G. R. Co. v. King, 81 Ala. 177, 2 So. 152; Louisville & N. R. Co. v. Williams, 199 Ala. 453, 74 So. 382; Alabama, T. & N. R. Co. v. Huggins, 205 Ala. 80, 87 So. 546.
Wilson filed his complaint in the Circuit Court of Madison County, Alabama. The case went to the jury on Counts Two-A and Three-A, charging simple negligence, and Count 4, charging wantonness, demurrers to which were overruled. Issue was joined on these counts. Upon trial of the cause the jury returned a verdict for the plaintiff (appellee) expressly under Counts Two-A and Three-A of the complaint as amended, fixing his damages at $32,000.
Appellant filed a motion for new trial which was denied and this appeal followed.
Appellant assigns as error the overruling of its demurrers to the two counts as amended based on negligence under which the jury expressly returned its verdict as well as numerous rulings by the trial court on the evidence, the overruling of its motion for new trial and the giving or refusal to give certain charges to the jury and portions of the court's oral charge.
Primarily the various contentions raised by appellant in its numerous assignments of error can be resolved by a determination of the status of the appellee at the time of the accident complained of.
The record establishes, and it is undisputed, that at the time of the accident the
To further describe the situation at the time of the accident: An engine of the defendant, appellant, was backing and pushing a box car from north to south along the spur track. Appellee was cutting grass while standing between the spur track and the platform of the warehouse with his back to the approaching train, facing southeast. It was stipulated that the track was so close to the platform as to be an unsafe distance, about 6 feet 1.5 inches. There is conflict in the evidence as to whether the appellee was standing by the side of the track, as he testified, or whether he was emerging from under the platform in a stooped position moving backward as witnesses for appellant testified. There was further conflict in the evidence as to the distance in which it would be possible to stop the engine under the conditions and circumstances involved, ranging from 20 feet, according to witnesses for appellee, to 70 feet according to the appellant's engineer. All of these conflicts in the testimony were properly submitted to the jury.
Appellant contends that the trial court erred in overruling its demurrers to the counts as amended and in not giving certain charges to the jury, based upon its assertion that the appellee was a trespasser or mere licensee at the time of the accident and was under a duty to "stop, look, and listen" before going upon or near the track of appellant. A determination of this question depends upon the status of the appellee at the time of the accident, or stated differently, a determination of the duty owed by the railroad to persons in his position.
The law on this subject is generally stated as follows:
The appellee in this case was undisputedly pursuing his duties as an employee of the warehouse company under the terms of the contract between his employer and appellant railroad. As such it was necessary for him to be near the track of the appellant. We approved the following statement in an analogous situation in Louisville & N. R. Co. v. Williams, supra [199 Ala. 453, 74 So. 383]:
Further, this court stated in Alabama, T. & N. R. Co. v. Huggins, supra [205 Ala. 80, 87 So. 549]:
The transcript consists of more than 500 pages and the appellant's brief is very voluminous, and would encumber this opinion unnecessarily to discuss and distinguish the various authorities cited, but we are clear to the conclusion that the trial court ruled correctly in overruling the demurrers addressed to the counts on which the parties went to trial.
A careful review of the assignments of error objecting to the refusal of various charges requested by defendant, as well as objection to portions of the court's oral charge, indicates that most of such objections were based upon the argument that the plaintiff (appellee) was a trespasser at the time of the accident, which contention we have disposed of in the first point considered above. Some assignments concern the ruling of the court on the evidence at various points in the trial. Many of these assignments are not argued in brief of appellant, and hence will not be considered by this court. Other ones after careful study we find to be without merit, such as questions propounded to various expert witnesses. Considerable latitude is allowed in examining such witnesses and we can perceive of no such prejudice to the defendant as would require a reversal.
Likewise, we reach the same conclusion with reference to conduct of plaintiff's counsel. Indeed, he seemed rather careful and restrained in his examination of witnesses, etc.
There are other assignments which can be reduced to the question of whether or not the court erred in refusing to direct a verdict for the defendant (appellant) and whether the court erred in not finding that the plaintiff (appellee) was guilty of contributory negligence as a matter
There are other assignments claiming error in the refusal of charges seeking to declare on the principle of subsequent negligence. Without deciding the correctness vel non of these charges, it is quite clear that the defendant suffered no prejudice because of the oral charge of the court which fully and clearly covered the law on the question sought to be enunciated by these charges.
Likewise, no error intervened in giving plaintiff's requested Charge One-A on concurrent negligence. Greyhound Corporation et al. v. Brown, 269 Ala. 520, 113 So.2d 916.
The question of excessiveness of damages is also raised. It is argued that the verdict rendered manifested bias, passion, or prejudice on the part of the jury. Appellant's counsel thinks appellee is a malingerer. But if plaintiff's evidence be believed—and this was for the jury—he was shown to be a physical wreck, afflicted with traumatic epilepsy, so advanced that he has severe seizures every few days. The trial court who heard the whole case refused to reduce the verdict, nor are we so inclined. Austin v. Tennessee Biscuit Co., 255 Ala. 573, 52 So.2d 190.
Appellant also contends, seemingly very seriously, that because the negligence counts failed to allege that the damnifying act was caused by the negligence of the defendant's agents or servants acting within the line and scope of their employment, that proof of corporate participation was required and failing it was entitled to the affirmative charge on these counts. This principle of law only applied to a charge of willful or wanton wrong, not to negligence. Louisville & N. R. Co. v. Johns, 267 Ala. 261, 101 So.2d 265, and cases cited; Bessemer Coal, Iron & Land Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A.,N.S., 389.
Appellant cites among other cases Atlantic Coast Line R. Co. v. Brackin, 248 Ala. 459, 28 So.2d 193, as sustentive of its position. But in the Johns case, supra, at 267 Ala. 274, 101 So.2d 277, we observed that if there be any statements in Atlantic Coast Line R. Co. v. Brackin in conflict with Johns or the Hayes [Birmingham R. Light & Power Co. v. Hayes, 153 Ala. 178, 44 So. 1032] and Reed [Reed v. Ridout's Ambulance, 212 Ala. 428, 102 So. 906] cases on which Johns was rested, such statements are disapproved. There may be statements in other cases which might be construed as somewhat conflictory of the principle of Johns and Doak and Hayes or Reed, supra, but if so, such statements should also be disregarded. The law at the trial of the case at bar was as announced in those cases. See also Chambers v. Cagle, Ala., 123 So.2d 12, 14-15.
See, for information, Act No. 544, pp. 765-766 and Act No. 624, p. 895, Gen.Acts of Ala.1957, which apparently seek to change the rule with respect to willfulness and wantonness adverted to ubi supra.
We have given studious consideration to the whole case and believe we have treated every meritorious point properly assigned and argued as error. The case was well tried by both counsel for plaintiff and defendant and the trial court, and we are at
LIVINGSTON, C. J., and LAWSON, SIMPSON, GOODWYN, MERRILL and COLEMAN, JJ., concur.