Alabama City, Gadsden & A. Ry. Co. v. Bessiere

McCLELLAN, J.

A sufficient statement of the outline of, and many of the details presented in, this litigation will be found set forth in its report on former appeal. — 179 Ala. 317, 60 Smith. 82. On the succeeding trial, the issues made by the plaintiff’s pleading, and not denied submission to the jury, were counts 12, 13, A, AA, and B. Additional to general traverses of these counts, the defense interposed were acts of contributory negligence in varied forms. The reporter will summarily set forth the indicated counts, and the pleas addressed to them, in his recital of the facts. The legal principles applied to the case, in all its features, have been too often and recently stated to be now at all unfamiliar.

Count 13 ascribed Bessiere’s death to the unskillfulness, inexperience, or incompetency of Motorman Duncan, in breach of the common-law duty of exercising reasonable care in the selection or continued retention of its servant.

(1, 5) It is the duty of those serving the public as carriers of passengers to use reasonable care and dil *64 igence in selecting competent and careful servants. The law requires that companies using instrumentalities which, if not skillfully handled, are very dangerous, shall exercise due care and diligence to have competent employees in charge thereof. — Holland v. T. C. I. & R. A. Co., 91 Ala. 444, 8 South. 524, 12 L. R. A. 232; 6 Cyc. pp. 596, 597; Olsen v. Citizens’ Ry. Co., 152 Mo. 426, 54 S. W. 479. The observance and exercise of a like degree of care is required of the master in discovering and remedying any incompetency which may afterwards be developed. — Holland’s Case, supra. Where the service involves special kiowledge or experience, only individuals having qualification therefor should be employed. But the employer is not an insurer in the premises; for the master meets the obligation of duty in that regard by observing and exercising reasonable care and diligence to engage and to retain employees possessing the qualification stated. In order to show a breach of duty by the master in such circumstances, it must be made to appear that the master knew of the servant’s incompetency, or by the exercise of reasonable diligence could have ascertained the fact. — Penn. Coal Co. v. Bowen, 159 Ala. 165, 49 South. 305.

Now, as to incompetency: That deficiency in a servant is not shown by an instance of negligence on the part of the servant; nor would that be sufficient to allow the imputation to the master of notice of his incompetency. — Conrad v. Gray, 109 Ala. 138, 19 South. 398; Pace v. L. & N. R. R. Co., 166 Ala. 519, 52 South. 52. “Negligence is not synonymous with incompetency. The most competent may be negligent.” Furthermore, the injury complained of must have been the proximate result of the servant’s incompetency. — First Nat. Bank v. Chandler, 144 Ala. 286, 39 South. 822, 133 Am. St. Rep. 39.

*65 (6) The approval given the third count in Penn. Coal Co. v. Bowen, supra, would seem to he apt authority for affirming the sufficiency of count 13 here under review. Assuming its sufficiency, and also assuming the quite doubtful fact that there was evidence tending to show defective vision of the motorman, after careful review of the evidence bearing upon that count’s material averments, it is clear that the evidence wholly failed to sustain the essential obligation — imported by the term “negligently” as therein employed — that this master knew, or did not observe and exercise reasonable diligence to discover, that the vision of the motorman was defective. There was no evidence going to establish any notoriety of the asserted fact with respect to his vision. The defendant requested the affirmative charge as to count 13, and its refusal was error.

(7) Count B ascribed intestate’s death to negligence of the motorman after the discovery of intestate’s peril. It has long been ■ established here that negligence to liability of an operative, in such cases can only be predicated of the operative’s actual knowledge of the peril of the party injured and under such circumstances as that time and opportunity for the prompt, orderly, and skillful use of the appliances at hand to stop the carrier’s vehicle, or to give warning to the unadvised imperiled party of its approach, or both, was afforded, and, if employed as stated, would have availed to avert the injury, or to materially minimize the damnifying result. — L. & N. R. R. Co. v. Young, 153 Ala. 232, 45 South. 238, 16 L. R. A. (N. S.) 301; Anniston El. Co. v. Rosen, 159 Ala. 195, 48 South. 798, 133 Am. St. Rep. 32.

The evidence is wholly silent in respect of time and opportunity in and for Avhich the duty stated before could have been performed, and injury averted, or the *66 damnifying result minimized. The burden of proof was on the plaintiff to establish the negligence charged. The place of injury was a station on the line of a street railway in the City of Gadsden. The statutes affecting the burden of proof where the injury is caused by a railroad’s operation, as distinguished from the operation of street car lines, do not apply to this plaintiff’s case. — Appel v. Selma Street Ry. Co., 177 Ala. 457, 59 South. 164; Ex parte Selma Street Ry. Co., 177 Ala. 473, 59 South. 169. If it should be assumed that intestate was on the track before the oncoming car, and that he saw intestate’s peril ahead, still there could be no recovery on count B, for the evidence does not show at what point, at what distance from the imperiled party, the motorman became actually aware of his peril, to say nothing of the right of an operative to presume, until it otherwise appears, that an adult person, walking or standing, will leave a place of peril before it is too late. — Anniston El. Co. v. Rosen, supra. Without evidence to indicate that fact, it was not possible to conclude to negligence under count B. The fact that there was, on the occasion, a good headlight burning on the car, and the further fact that the motorman was looking ahead over the track and its borders at the place of injury, and the further fact, assumed for the occasion, that intestate was on or dangerously near the track, have no tendency to show the point, the distance, at which the operative became aware of intestate’s peril, so as to apply to his conduct or inaction the rule of duty before restated. The evidence or any inference from it negatives the idea, allied with the facts assumed as stated, that intestate may have stepped upon the track immediately in front of the car, within such nearness to it as to have rendered impossible any action that would have been preservative. The court *67 erred in refusing to the defendant the general affirmative charge as to count B.

(8) Count A relied for recovery upon the theory that intestate’s death was due to willful or wanton misconduct on the part of the motorman. The evidence was not sufficient to justify the submission of the issues tendered by this count to the jury; the affirmative charge for defendant, as to this count, having been requested. Essential elements of willful or wanton wrong under count A were the motorman’s actual knowledge of- intestate’s peril and time and opportunity to- avail of means to avert his injury. Until there was evidence tending to show the acquirement of that actual knowledge at such distance from intestate, then imperiled, as that time and opportunity were afforded in which the collision would, if such means had been properly avalied of, have been avoided, there was no basis upon which to rest a finding of wanton or willful wrong as charged in count A. Certainly proof of injury, by a street car or a locomotive, o:f one known by the operative thereof to he in peril at some undefined distance, ahead of his machine, not indicated Toy the evidence, will not suffice to show, in any degree, -that the operative caused or permitted the injury with conscious indifference to probable consequences or with an intention to injure, unless the injury is inflicted by the reckless disregard of consequences found, upon occasion, to attend the operation of such agencies at a great speed over places at which the operative, from his own knowledge, knows there is likely to be people or property in exposed positions. The relative position, of both the operative when he is advised of the peril and of the person imperiled must, in such cases as Count A describes, be shown- in the evidence. When that is dis *68 closed, the duty of the operative may be understood, and its breach vel non determined.

We think there was evidence requiring the submission to the jury of the issues made by count 12. There was evidence and reasonable inference from evidence tending to show that intestate was stricken while on or dangerously near the track at the station called “Brown’s Crossing” or “Brown’s Station.” The count, however, states a cause of action grounded on simple negligence.

(8) Material averments of count AA were without any support in the evidence. It is averred therein that intestate offered himself for carriage as a passenger, by this carrier, in the usual manner, and was seeking to board one of said cars of the carrier. The only evidence on the subject of intestate’s relation of passenger to this carrier was his statement, on leaving home a short while before his death, that he was going to take passage on the street car at that point. That he was at the station usually used by him when stricken, of course, lends support to his declaration of purpose on leaving home. But these circumstances do not tend, in any degree, to show what he did at the station in respect of offering himself for carriage as a passengar. In fact, there is an entire absence of evidence to show what he did upon or after arrival. His being stricken by the car, if so he was, and the presence of the lifeless body on the margin of the pile of ashes or cinders, put there to aid passengers entering or leaving the- cars at that station, did not effect to indicate or describe any act of his in respect of the stated averments' of count AA. It was supposed on the trial that some advantage accrued to the plaintiff because of an asserted custom whereby cars were wont to be stopped at this station by the acts of people desiring to get aboard, *69 which acts consisted of signs with the hands or feet, made while on or beside the track, or by holding a light of some character over the track — all this with the view to attracting the attention of the motorman to the fact that a passenger was waiting for carriage. This station was a “flag station.” If the custom asserted should he accorded the fullest acceptance and binding quality, there is no evidence whatever that intestate did aught to avail of it — that he sought to avail of it. So far as the present record is concerned, it is pure assumption to say that he did anything under or according to the asserted custom. All evidence pertaining to that asserted custom might well, at the final stage of the trial, have been excluded. If there had been any evidence tending to show Bessiere’s action at the station within the asserted custom, it might then have been retained in the case. However, this case presents no such issue; for this intestate is not shown to have sought to have acted, at the station, under the custom asserted.

(10) In a number of the special instructions given to the jury at the instance of the plaintiff, the degree of conviction, on findings of fact by the jury, necessary to allow the conclusions deduced as from hypotheses therein affirmed, is misstated by the employment of the phrase “reasonably find.” The legal requisite is “reasonably satisfied”- — a very different conception from that expressed in “reasonably find.”

As appears, this court is of the opinion that only count 12 presented a jury issue on the record here. On the retrial, to which remandment may lead, more attention should be .accorded by the litigants to evidence referable to the averment of want of proper control of the car when approaching a flag station, such as this one was. Courts have no serviceable common knowl *70 edge on this subject; and the evidence now presented, perhaps, does not adequately discover the matter. ,

The judgment is reversed, and the cause is remanded.

Eeversed and remanded.

Sayre, de Graffenried, and Gardner, JJ., concur.