COLUMBUS & W. Ry. Co. v. BRIDGES.

(Supreme Court of Alabama. April 17, 1889.)

1. PLEADING-MOTION TO STRIKE OUT-HARMLESS ERROR.

The refusal of the court to strike out irrelevant and redundant averments from a complaint, as authorized by Code Ala. 1886, §§ 2664, 2665, is not reversible error, unless it affirmatively appears that defendant was prejudiced thereby.

2. NEGLIGENCE-DANGEROUS PREMISES-RAILROAD BRIDGE.

A recovery cannot be had under the "employers' act" (Code Ala. 1886, § 25902592,) for injuries received by plaintiff's intestate while in defendant's employ as a locomotive engineer, by the fall of a trestle, the foundation of which was washed out by an unusually great and destructive flood, where it appears that the trestle was constructed in the manner usual with the best managed railroads, and that it had afforded a safe passage for trains for 15 years.

8. MASTER AND SERVANT-NEGLIGENCE-VIOLATION OF RULES.

Negligence cannot be imputed to defendant under subdivision 4 of section 2590, which provides that the employer shall be liable for injuries to an employé, caused by the negligence of any person in the employer's service who has charge of any signal, etc., from the fact that plaintiff's intestate attempted to cross the trestle after the safety signal was given, where it appears that the signal was not given from the end of the trestle being approached by the train, as required by defendant's rules relating to signals.

4. SAME

CONTRIBUTORY NEGLIGENCE.

Where it appears that plaintiff's intestate examined the trestle on the day of the accident, and knew that the water was rapidly rising, and that the trestle was rendered dangerous by the overflow, and yet attempted to cross with his train without any orders to that effect or necessity therefor, defendant is not liable, though the watchman gave the safety signal.

5. SAME DEATH OF EMPLOYÉ-MEASURE OF DAMAGES.

Section 2591 authorizes the administrator to maintain an action where the injury to the employé results in death, and directs the distribution of the recovery, but does not fix the measure of damages. Held, that evidence that deceased had a disease likely to shorten life is admissible, since the continuance of life constitutes an element of damage.

6. SAME-PUNITIVE DAMAGES-INSTRUCTIONS.

There being no evidence of wanton or reckless negligence on the part of defendant, the court should charge that punitive damages cannot be recovered.

Appeal from circuit court, Tallapoosa county; J. R. DOWDELL, Judge. This action was brought by Mrs. Anna Bridges, as administratrix of the estate of her husband, John J. Bridges, against the Columbus & Western Railway Company, to recover damages for the death of her husband, alleged to have been caused by the wrongful acts and negligence of defendant, its agents and servants, while he was in its employment as engineer and conductor of a construction train. He was killed March 29, 1886, while attempting to carry his train across the Tallapoosa river, by the falling of the bridge on the east side of the river, during the great overflow which then flooded the country. The action was commenced on the 18th of February, 1887. During the trial, Dr. Pope, the physician who attended the deceased after he received his fatal injuries, was asked by the defendant on cross-examination, "What was his general condition of health?" To this question the court sustained an objection interposed by plaintiff, and defendant thereupon excepted. The defendant then asked the witness, "Was not the deceased suffering from pulmonary disease, for a number of years prior to this accident?" and he answered in the affirmative. The court sustained an objection to this question and answer, and defendant duly excepted. As to the measure of damages, the court instructed the jury: "Under the statute, the damages are in their nature punitive, and the law leaves it with the jury to fix the same, being governed by what they deem just and proper, as fair-minded, honest, and reasonable men." The defendant excepted to this charge, and requested the following charge in writing: "Under the facts of this case, punitive or vindictive damages can not be recovered." The court refused to give this charge, and the defendant duly excepted.

Geo. P. Harrison, Jr., and J. M. Chilton, for appellant. W. D. Bulger, Thos. L. Bulger, and J. C. Richardson, for appellee.

CLOPTON, J. The statutes regulating the system of pleading require that all pleadings shall be as brief as is consistent with perspicuity and the presentation of the facts and matter to be put in issue in an intelligible form; and also provide that any pleading unnecessarily prolix, irrelevant, or frivolous may be stricken out on motion of the adverse party. Code 1886, §§ 2664, 2665. It may be conceded that some of the counts of the complaint contain irrelevant and redundant averments, which should have been stricken out on motion of defendant. But the refusal of the court to strike them out is not a reversible error, unless it affirmatively appears that thereby prejudice resulted to defendant. Goldsmith v. Picard, 27 Ala. 142. Plaintiff's intestate was an employé of defendant in the capacity of conductor and engineer of a construction train. The injuries which caused his death were received while attempting to pass with his train over a bridge across the Tallapoosa river, from the west to the east side. The trestle which constituted the approach to the bridge from the east gave way under the weight of the train, in consequence of the foundations having been washed out by overflowing water, caused by an unusual flood. The action is brought by plaintiff as administratrix under the "employer's act," which composes sections 2590-2592 of the Code of 1886. Negligence is charged in two respects: First, in the alleged defective foundation of the trestle; and, secondly, in the signal averred to have been given by the watchman at the bridge.

The rule governing the liability of railroad companies for injuries caused by floods should be regarded as well defined and settled by an almost unbroken line of adjudicated cases. It rests on the general principle that the measure of the company's duty in constructing and keeping the ways, works, machinery, and plant free from dangerous defects is such care and diligence as a man of caution and prudence would exercise under like circumstances. The company is bound to bring to the construction of its ways and works the knowledge and skill of engineering generally known and applied in such business, and to provide against such casualties as a cautious and prudent man possessing the same knowledge and skill would or should reasonably foresee and anticipate. In the location and erection of bridges and trestles regard should be had to the size and nature of the stream, the character and feature of the adjacent country, and the relative position and formation of the abutting land, its liability to overflows, and their probable extent and effect. They should be so constructed as not to be subject to the risks and perils arising from rainfalls, known to experience to be incident to the particular section of the country, though rarely occurring, or which competent and skilled engineers should reasonably anticipate. But they are not bound to provide against unusual or extraordinary floods, such as have never been known to occur previously, and which could not have reasonably been foreseen by competent and skillful persons. Railway Co. v. Gilleland, 56 Pa. St. 445, was an action for an injury caused by the continuance of a culvert, which, it was alleged, was so negligently constructed as not to furnish sufficient vent for all the water flowing down the channel of the stream. After substantially saying that in such case proper engineering should observe the size of the stream, the character of its channel, and the declivity of the circumjacent territory which forms the watershed, and supply the means of avoiding the injury which would result from locking up the natural flow or obstructing its passage so as to cause a reflux in the times of ordinary high water, AGNEW, J., says: "Beyond this, prudent circumspection cannot be expected to look, and there is therefore no liability for extraordinary floods,-those unexpected visitations, whose comings are not foreshadowed by the usual course of nature, and must be laid to the account of Providence,-whose dealings, though they may inflict, wrong no one." v.5so.no.28-55

The evidence clearly establishes that the flood was not only unusual and extraordinary, but greater and more destructive than had ever before happened in the memory of the inhabitants,-a flood which human ken could not have foreseen, nor the greatest caution and prudence could have reasonably anticipated. There is no liability on defendant for not having provided against the dangers and consequences of such a flood. Railroad Co. v. Halloren, 3 Amer. & Eng. R. Cas. 343; Railway Co. v. Fowler, 8 Amer. & Eng. R. Cas. 504, 12 Amer. & Eng. R. Cas. 196; Patt. Ry. Acc. Law, §§ 30, 31. Not controverting this rule, plaintiff contends that there was negligence on the part of the company in the construction and maintenance of the foundations of the trestle, which concurred with the flood in producing the injury to her intestate. Notwithstanding the flood may have been unusual and unprecedented, if the insufficient construction of the trestle was the proximate and real producing cause of the injury, the defendant would be liable; but, if the flood was of such overpowering and destructive character as to produce the injury apart from and independent of the particular negligence alleged in constructing the foundations of the trestle, there is no liability, though there may have existed some negligence in their construction and maintenance. Railroad Co. v. School-Dist., 96 Pa. St. 65.

The true test is, was the trestle so negligently constructed as to be insufficient and insecure in cases of usual and ordinary floods, incident to that section? If it was sufficient and safe at such times, though insufficient to stand against extraordinary floods, negligence in its construction cannot be regarded as the real producing cause of the injury. The evidence shows that the trestle had been constructed about 15 years previously, in the manner in which such trestles are generally constructed by the best-managed railroad companies, and had stood, during all that period, on the same or similar foundations, affording safe passage for engines and trains without accident or objection; and nothing is shown to have occurred which indicated danger in its continuance. On these facts, the court should have instructed the jury that there is no ground to impute negligence to defendant in its construction or maintenance.

The plaintiff, however, further insists that the negligence of the watchman at the bridge, in giving the safety, instead of the danger, signal when the train was approaching the bridge from the west, concurred with the flood in causing the injury. The contention is based on subdivision 5, § 2590, Code 1886, which provides that the employer is liable to answer in damages to the employé, "when such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway." On the question of fact whether any signal was given the evidence is in conflict. Railroad companies have authority, and, it may be said, generally it is their duty, to prescribe suitable rules and regulations for the direction and management of their trains, for the purpose of protecting their employés as well as passengers. The rules provided by defendant were introduced in evidence, and prescribe the manner in which signals must be given to signify whether the train shall move forward, stop, or move backward; and also that the person of the watchman must be kept in sight, as a signal to approaching trains that all is right. There is also evidence that the signal of safety must be given at the end of the bridge which is being approached by the train. Unless a signal is given in accordance with the rules of the company, a conductor or engineer is not authorized to rely on it, and, if he does, and injury ensues to him in consequence thereof, there being no other act of negligence contributing to produce it, the negligence which renders the company liable under the fourth subdivision of section 2590 cannot be imputed to the company.

We have heretofore held that the "employer's act" does not take from the

employer the defense of contributory negligence. Railway Co. v. Holborn, 84 Ala. 133, 4 South. Rep. 146. The statute expressly declares that the employer is not liable if the employé knew of the defect or negligence, and failed, in a reasonable time, to give information thereof to the employer, or to some person superior to himself in the employment of the employer, unless he was aware the employer or such superior already knew of such defect or negligence. In this case there was neither time nor opportunity in which to give the defendant notice, and the company could not have known of the defect or negligence,-no room for the operation of this provision of the statute. No person superior to plaintiff's intestate in the employment of defendant is shown to have been present. He was both conductor and engineer of his train, directed its management, and controlled its movements. He was under no orders from any superior to move his train from the west to the east side of the river on that evening. His attempt to cross the bridge was of his own volition, no doubt prompted to do so by a desire to be, on the next morning, at the place most convenient to prosecute the work in which he was specially engaged,-repairing the trestles which had been washed out on either side of the river. The evidence tends to show that he had examined the bridge during the day, and knew, or should have known, that the water was rapidly rising. If he knew the manner in which the trestle was constructed, the unprecedented character of the flood, the imminent danger to the trestle by the overflow of the river, and the rapid rising of the water, and with such knowledge, and under such surroundings, attempted, without compulsion or necessity, the hazardous passage of the bridge, his negligence sufficiently contributed to his injury to defeat a recovery by plaintiff.

Section 2591 authorizes the personal representative to maintain an action, if the injury results in the death of the employé, and directs the distribution of the recovery. The statute does not prescribe or fix the measure of damages, neither are they submitted to the arbitrary discretion of the jury. It has no punitive purpose, and the common-law rules as the measure of damages are applicable. It is wholly unlike, in its objects and purposes, the statute of February 5, 1872, which was intended to prevent homicide. As pecuniary gain from a continuance of life constitutes an element of damage in this class of cases, the court should have admitted the evidence that plaintiff's intestate was afflicted with a pneumonic complaint, which affected the probable continuance of life. There is no evidence tending to prove, or from which could be inferred, willful, wanton, or reckless negligence on the part of the company. The charge requested by defendant, that on the facts punitive or vindictive damages cannot be recovered, should have been given. Railroad Co. v. Arnold, 84 Ala. 159, 4 South. Rep. 359.

We have considered and endeavored to state the principles which should govern the case on another trial, without applying them specially to the several rulings of the court, deeming such application unnecessary; and, as there was no opportunity to give the defendant information of the defect or negligence, we regard it unnecessary to consider the demurrer, based on the ground that the complaint omits to aver such facts. Reversed and remanded.

ESPALLA et al. v. WILSON et al.

(Supreme Court of Alabama. April 18, 1889.)

1. PLEADING-Demurrer-HARMLESS ERROR.

It is harmless error to overrule a demurrer to a defective special count on a bill of exchange, when there are good common counts under which the instrument is admitted in evidence.

2. SAME EVIDENCE.

In such case, though the bill of exchange would be inadmissible under the common counts without preliminary proof of its execution, the error in admitting it without such proof is cured if its execution is subsequently shown.

3. SAME-MOTION TO STRIKE OUT.

If a replication is merely defective, and not frivolous or a nullity, it is discretionary with the trial court whether to grant a motion to strike it from the record or to put the defendant to his demurrer, and an order denying such a motion is not reviewable on error.

4. SAME STATUTE OF FRAUDS.

In an action on a bill of exchange the defense that the instrument was given for a debt of another, and does not express the consideration, and is therefore invalid under the statute of frauds, must be specially pleaded to be available.

5. STATUTE OF FRAUDS-PROMISE TO ANSWER FOR DEBT OF ANOTHER.

A bill of exchange drawn at the time of the execution of a lease on real estate for the rent thereon, and which was part of the original agreement to lease, is not, as to the acceptors, who are not parties to the lease, a promise to answer for the debt of another, but an original promise, founded on a valid consideration.1

6. TRIAL-INSTRUCTION.

In an action on such a bill, providing for the payment of the agreed rent monthly, an instruction that if the lessor complied with his agreement he can recover for the full term, though the lessee abandoned the premises before the expiration of the lease, does not amount to a direction to disallow an undisputed payment of one month's rent.

Appeal from circuit court, Mobile county, WILLIAM E. CLARKE, Judge. This action was brought by Wilson, Sage & Co., suing for the use of T. H. Cox, against Espalla & Haynie, as partners; was founded on the defendants' acceptance of a bill of exchange, drawn on them by one W. W. Haughton; and was commenced on March 6, 1886. The complaint contained the common money counts, and a special count on the acceptance in the statutory form, (Code, p. 790, form 2,) except that the bill of exchange was set out in full, but without copying the acceptance; and it was added that the bill of exchange was entitled to a credit of $17, paid on the 1st December, 1884. The bill of exchange, as set out in the complaint, was dated October 7, 1884, addressed to the defendants, and requested them to pay to Wilson, Sage & Co., "agents for Theo. H. Cox, seventeen dollars on the 1st of December, 1884, and each month thereafter to November 1, 1885, inclusive." The defendants demurred to the special count, (1) because it was not alleged or shown that the acceptance was in writing; (2) because the bill of exchange, as set out, was void for uncertainty; and (3) because it was discharged by the payment of $17, on December 1, 1884. The court overruled the demurrer, and the defendants then pleaded (1) want of consideration, (2) failure of consideration, (3) payment, and three other special pleas, which averred, in substance, that the acceptance was given for the rent of a house, leased by plaintiffs, as agents of said Cox, to W. W. Haughton, at a stipulated rent, payable monthly; that the plaintiffs agreed and promised to make necessary repairs, and to put the premises in good tenantable condition, but failed to do so; and that Haughton, after notice to them, abandoned the premises because of such failure. To these special pleas the plaintiffs filed several replications, denying that there were any stipulations for repairs in the original contract for rent, or when the bill of exchange was given and accepted; alleging that Haughton continued in the occupation of the premises for eight months or more, and abandoned them at the expiration of the business season; and that defendants, as his agents, had received moneys to be applied to the payment of said bill of exchange. The defendants moved to strike out these special replications, on several grounds particularly specified,-15 to one, and 11 to another. On these pleadings the judgment entry recites the rulings of the court as follows: "Motion to strike replications from the files overruled. Came the parties by their attorneys, and the defendants' motion to hear the demurrers on file is sub

As to what agreements are within the statute of frauds, as being promises to answer for the debt of another, see Stewart v. Jerome, (Mich.) 38 N. W Rep. 895, and note; Rodgers v. Hardware Co., (Neb.) 39 N. W. Rep. 844, and note; Manufacturing Co. v. Burrows, (Kan.) 19 Pac. Rep. 809, and note; Waters v. Shafer, (Neb.) 41 N. W. Rep. 181, and note.