(102 Bo.) sions of steam incident to the operation of ning and managing said locomotive engine," trains; and that negligence alleged to have etc. The defendant pleaded the general isresulted in frightening [an] animal cannot be sue with leave to give in evidence any matpredicated upon the operation of a train, unters which would constitute a good defense if less in so doing unnecessary noises or emisspecially pleaded. sions of steam were made, and these noises, or the movement of the train, or the emission of steam, were recklessly or wantonly made or done after the discovery of peril, or were made or done with the intention of frightening the animal in question. "B. I charge you, gentlemen of the jury, the authority to operate a railroad includes the right to make the noise incident to the movement and workings of its engine, as in the escape of steam, and the rattlings of cars; and also to give the usual and proper admonitions of danger, as in the sounding of whistles and the ringing of bells. It is not liable for injuries occasioned to horses hitched along the highway or street taking fright at noise occasioned by the lawful and reasonable exercise of these rights and duties." S. A. Lynne, of Decatur, for appellant. Eyster & Eyster, of Albany, for appellee. FOSTER, J. This is an action by T. J. Newsome against the Louisville & Nashville Railroad Company for damages for injuries to a horse and damage to a buggy and harness, because of the alleged negligent acts of the defendant. The complaint contained three counts. On the issues submitted to the jury a verdict was rendered for the defendant and from the judgment rendered on the verdict the plaintiff prosecutes this appeal. Each count of the complaint contained averments of fact showing a substantial cause of action. The first count avers that the defendant company was operating with steam a locomotive along a street in the city of Decatur, and that the engineer in charge negligently allowed or caused the steam to escape, which was calculated to frighten a horse of ordi nary gentleness, as was the horse of plaintiff, and that the sight and noise frightened the horse which was hitched to a regular hitching post on the street, and caused him to run away and break the buggy to which he was attached, and so frightened the horse as to permanently injure him and render him of less value. The second count avers that while the horse was standing hitched to the post on the street an agent or servant of the defendant in charge of the locomotive and in the line and scope of his employment, negligently caused the locomotive to emit, with a loud noise, a large and unnecessary volume of steam, which came near to or enveloped the horse causing him to take fright, etc. The third count avers that the horse was hitched within a few feet of the railroad track and within sight of defendant's employees in charge of its locomotive; the horse took fright and ran away "owing to the negligence of the defendant's employees in run [1] Counts 1 and 2 specifically set out the initial negligence upon which plaintiff relied to fix liability, and under these counts he could not recover for negligence not specified; any negligence occurring after the discovery of peril is not embraced in these counts, and for such subsequent negligence there can be no recovery. L. & N. R. R. Co. v. Lowe, 158 Ala. 394, 48 So. 99. under a count alleging negligence in general [2] Subsequent negligence may be proved terms. In L. & N. R. R. Co. v. Calvert, 172 Ala. 597, 55 So. 812, it was held that a count alleging that the employees in charge of a train on defendant's railroad so negligently managed it that the engine ran against plaintiff's intestate at a public road crossing proximately causing his death, was sufficient to authorize a recovery for subsequent negligence. Hines, Director General, v Champion, 204 Ala 227, 85 So. 511; A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 So. 84. [3] The third count of the complaint avers negligence in general terms, and also avers that the horse was hitched to a post near the railroad track "and in sight of defendant's employees in charge of its locomotive." recovery for subsequent negligence may be had under this count. A [4, 5] The first assignment of error relates to the court's oral instructions to the jury. The excerpt from the oral charge to which exception was reserved is as follows: "Gentlemen of the jury, if you should find that this horse was scared or afraid of the train, and was afraid of the emission of the hitched the horse there in front of the store steam, and if you further find that the plaintiff and that this condition of the horse, his nervousness, contributed, even in a remote degree to the injury occasioned, then the plaintiff would be barred of recovery on account of his contributory negligence, because, if his own act was negligent, and that act contributed to the injury occasioned, then negligence on his part would bar him of the recovery, be cause the law will not allow a man to contribute to his own injury, to help and be a part of his own injury, and permit him to recover for any damages occasioned." The negligence of the plaintiff must be a concurring proximate cause of the injury in order for such negligence to be available under the defendant's plea of contributory negligence. Reaves v. Anniston Knitting Mills, 154 Ala. 565, 45 So. 702; North Birmingham St. Ry. Co. v. Calderwood, 89 Ala. 247, 7 So. 360, 18 Am. St. Rep. 105; Montgomery Gas Co. v. Railway Co., 86 Ala. 372, 5 So. 735. Plaintiff's act or omission, when only a remote cause or a mere antecedent occasion or condition of the injury, is not contributory negligence. L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 261, 28 So. 438, 50 L., rect principle of law that "when an engine R. A. 620. In McCaa v. Thomas, 207 Ala. 211, 92 So. 414, the court condemned charges to the effect, "if the jury believe from the evidence that plaintiff's negligence or failure to exercise reasonable care in the slightest degree contributed to his injuries, he cannot recover," and declared the rule to be, "His negli gence or failure to exercise reasonable care must have contributed proximately to his injury." This is the established rule in this state. Seaboard Air Line Ry. Co. v. Laney, 199 Ala. 654, 75 So. 15; Tenn. Co. v. Bridges, 144 Ala. 229, 39 So. 902, 113 Am. St. Rep. 35. There is no difference between the words "slightest" and "remotest" as applied to the degree of negligence. "Remote" is defined as inconsiderable, slight; and "remote cause is a cause operating mediately through other causes to produce an effect." Standard Dictionary. If the facts set up as constituting plaintiff's negligence created a condition or a status which "even in a remote degree" contributed to the injury, the plaintiff was not debarred from a recovery by reason of such alleged contributory negligence. If the plaintiff hitched the horse to the post and "the nervousness of the horse contributed even in a remote degree to the injury" the plaintiff was not debarred from a recovery. No negligence of the plaintiff which remotely contributes to the injury will debar him from a recovery. The court fell into error in giving the oral instructions to which exception was reserved. [6, 7] Charges 1, 2, 6, 7, and 10 were properly given as to count 2. In said count the plaintiff assumed the burden of proving that an unnecessary volume of steam was emitted from the engine. And we recognize as a cor is managed in such a reckless and negligent manner as to frighten horses, and cause them to run away, the company is liable for the consequences-as where the engineer suddenly discharges a jet of steam near a passing team." L. & N. R. R. Co. v Jenkins, 196 Ala. 140, 72 So. 70. But when the plaintiff avers that an unnecessary volume of steam was emitted from the engine, the burden is upon him to prove the averment to the reasonable satisfaction of the jury. Such is the effect of the said charges. [8] Charge 9 was invasive of the province of the jury. It cannot be said as a matter of law that it was contributory negligence for the plaintiff to knowingly hitch a horse easily frightened in close proximity to plaintiff's track. Montgomery Street Railway Co. v. Hastings, 138 Ala. 446, 35 So. 412. [9] Charge 8 states a correct proposition of law. The plaintiff could have requested an explanatory charge if he had so desired. [10] Charges 3, 5, A, and B state the law correctly. Stanton v. L. & N. R. R. Co., 91 Ala. 386, 8 So. 798; Oxford Lake Line Co. v. Stedham, 101 Ala. 378, 13 So. 553. [11] Charge 4 is argumentative, but the giving of the charge is not error to reversal as it is a correct statement of the law. [12] A witness may give his opinion as to the value of a horse which he has owned and knows well, although he is not an expert. Rawles v. James, 49 Ala. 183; Railroad Co. v. Moody, 92 Ala. 279, 9 So. 238. [13] A witness may not be allowed to testify "I think he was as good a horse as I ever drove," as this is a mere conclusion. Thompson v. Hartline, 84 Ala. 65, 4 So. 18. The judgment of the circuit court is reversed, and the cause remanded. Reversed and remanded. GURLEY et al. v. GORMAN. (102 So.) (No. 24381.) (Supreme Court of Mississippi, Division A. Dec. 15, 1924.) (Syllabus by the Court.) Husband and wife 278 (2)-Settlement constituting part of collusive agreement for divorce held void. Property settlement constituting part of a collusive agreement between husband and wife for divorce held void because repugnant to public policy. Appeal from Chancery Court, Alcorn County; Allen Cox, Chancellor. Suit by Mrs. Pearl Gorman against C. B. HOLDEN, J. This is an appeal from a decree sustaining the right of the widow, Mrs. Pearl Gorman, to renounce the will of her deceased husband, John Gorman, and to take her legal share of his estate; the other heirs at law contesting the right to renounce the will, on the ground that the deceased while living had fully settled with his wife for her share in his estate. James Gorman died, leaving an estate valued at about $5,000; and he left surviving him two children by a former marriage, and the appellee, his wife. He left a will, giving the bulk of his estate to his son, and bequeathing only $5 to his wife. Mrs. Gorman renounced the will, and asked that she be allowed to take her legal share of one-third of the estate. The executor and the son answered, and denied her right to take her legal share of the estate because she had signed a release to all of her interest in the estate for the consideration of $330 before the death of her husband. This settlement, as evidenced by the written release, appears from the record to have come about in this way: James Gorman and his wife had not been living in harmony, and they went together to the office of a lawyer and there discussed the differences between themselves and a settlement thereof. At this conference, which was attended only by Mr. Gorman, his wife, and the lawyer, it was agreed that Mr. Gorman should pay his wife $330 in settlement of any claim that she might have against his estate, and that Mrs. Gorman would file a bill for divorce, and Mr. Gorman agreed that he would not contest the divorce suit. After the mon ey was paid over to her and the written release signed by her, the lawyer proceeded to prepare and file the bill for divorce, and the parties then left the office. Afterwards it seems that the bill was dismissed and a new suit for alimony instituted by the wife, whereupon Mr. Gorman answered with a cross-bill, seeking a divorce from her, and pleading his release for the sum of $330. No divorce was granted. We think the subsequent events regarding the separation and divorce proceedings between Mr. and Mrs. Gorman are immaterial for the purpose of deciding the question presented to us on this appeal, and therefore we shall not state these proceedings or the outcome thereof. After hearing all the testimony, the chancellor decided that the release was invalid, for the reason that the settlement and release was the result of a collusive agreement between the husband and wife for the purpose of promoting or facilitating the procurement of a divorce, which collusion was contrary to public policy and vitiated the settlement; and the renunciation of the will was allowed by the court and the wife permitted to take her share in the estate of the deceased husband. The appellant contends the settlement made between the husband and wife as evidenced by the written release was valid because the proof was not sufficient to show that the settlement was the result of collusion between the husband and wife to secure a divorce; that the written release was not subject to contradiction by oral proof; and that the release was sufficiently broad in its terms to cover the present or any future interest the wife had or might have in the estate of the husband. The appellee urges that the decree of the chancellor is correct on two grounds, viz.: First, the written release is not sufficiently. definite to cover any future inheritable interest the wife might have in the estate of the husband; and, second, that, even though the release is sufficiently broad to cover the future interest of the wife in the estate of the husband, still the settlement evidenced by the written release is void because it was made upon and grew out of a collusive agreement between the husband and wife to procure a divorce. We think the position of the appellant is untenable, and that of the appellee is sound. Because, if we concede the terms of the written release were broad enough to cover all future interest the wife might have in the estate of the deceased husband, still it is our opinion the release and settlement with the wife was invalid because it grew out of and was based upon the agreement or understanding between the husband and wife to secure a divorce. The collusive understanding that the bill would be filed by the wife and the husband agreeing not to oppose it occurred at the time the release was given, and was part of the settlement transaction resulting in the payment of the money and the execution of the release by the wife. The illegal collu For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 102 SO.-5 In Banc. sion between the parties tainted the con- tiff's precarious situation, to prevent the intract of settlement, and this infection nulli- jury. fied the release, and oral testimony showing this legal infirmity, due to collusion, and contrary to the public policy of our state, was admissible to invalidate the written release, similarly as in a case where fraud is shown to vitiate a contract. We have considered the evidence in the record showing that the settlement and release was induced by, and was a part of, the collusive agreement to secure the divorce, and we think it was sufficient to support the finding of fact by the chancellor that the settlement was the direct result of the collusion between the parties. The rule seems to be well established in all other jurisdictions, and we approve and adopt it, that collusion between husband and wife to obtain a divorce is illegal and contrary to public policy, and that any contract or agreement made by virtue of or in connection with such collusive agreement is unenforceable in the courts, and cannot be set up as a binding contract. Appeal from Circuit Court, Neshoba County; G. E. Wilson, Judge. Suit by H. T. Hardy against the Gulf, Mobile & Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Flowers & Brown, of Jackson, for appellant. Earl Richardson, of Philadelphia, and Marion W. Reily, of Meridian, for appellee. PER CURIAM. The appellee sued the appellant for a personal injury. The declaration contained three counts: First, the failure to ring the bell and blow the whistle, etc., on approaching public crossings in the town of Philadelphia; second, for the operation of said train at a greater rate of speed than six miles an hour within the corporate limits of the town of Philadelphia; third, that on said occasion said train was being driven at a rapid rate of speed and in Therefore we hold that the decree of the chancellor in allowing the appellee to renounce the will and take her legal share in the estate was correct, because the settle-a northerly direction and in the direction of GULF, M. & N. R. Co. v. HARDY. (Supreme Court of Mississippi. Dec. 15, 1924.) (Syllabus by the Court.) plaintiff's team and defendant's warehouse, Where plaintiff was unloading feed from defendant's car; that when said train was more than 100 yards from a point on said track opposite from where said wagon was standing said train came in plain view of plaintiff's team, and the engineer or fireman upon said train saw the plaintiff and saw that the team of the plaintiff was frightened, and that there was imminent danger of said team running away and seriously injuring the plaintiff unless said train was instantly stopped; that, notwithstanding the fact that the team was in plain view of the said en 1. Railroads 401 (3)-Instruction basing lia-gineer and fireman, after the train came to bility for injury by frightened team on speed of train held improper. a point where the said engineer and fireman saw the said team and the plaintiff, the said engineer and fireman, after seeing the position of peril of the plaintiff, recklessly and carelessly failed to stop said train, and continued to drive said train until the train was opposite the point at which said team was standing, when suddenly all of the brakes were put on the said train and the steam was caused to be emitted from same, and an unusual and startling noise was Railroad must use thereby made by said train, thereby increasreasonable diligence to prevent injury to driving the terror of the horses and mules; that er of team frightened by train. In a suit for damages for personal injury occasioned by frightening a team where there is no physical contact between a train and the team or the person injured, it is error to submit an instruction to the jury that they may find for the plaintiff if the train was being operated over 6 miles an hour in a city, and such operation was the proximate cause of the fright of the animals. 2. Railroads 360(1) Where a train is being operated in a municipality, and is approaching a team stationed at a car on a team track, and the employé operating it sees the horses are frightened and that their owner is in a position of danger, and fails to exercise reasonable diligence to prevent the injury, the company is liable for the negligence of its employés in failing to do what was reasonably necessary, in view of the plain as a result of the negligent action on the part of employés of the defendant railroad company who were operating the said train the team became frightened and unmanageable, notwithstanding the fact that the plaintiff was doing all in his power to control said team, and the horses swung around towards the wheels of plaintiff's wagon, and caused one of the mules to fall upon the (102 So.) plaintiff, and broke his leg, and injured him | operated at a speed in excess of 6 miles per in other places upon his body. hour, and the case was submitted on this ground, and on the third count, to the jury under instructions. There was a verdict for the plaintiff for $8,500. [1] Appellant insists that the refusal of the peremptory instruction as to the secord count of the declaration was error. That is, that no liability could be predicated upon the train being operated in excess of 6 miles per hour for the reason that there was no physical contact with the train which produced or resulted in the injury. It is insisted that the case is controlled by I. C. R. Co. v. Weathersby, 63 Miss. 581. In that "If the jury believe from the evidence in this case that the plaintiff's mare was killed by or because of the running of a locomotive of defendant's within the corporate limits of the city of Water Valley, when said locomotive was running at a greater rate of speed than six miles an hour, then the defendant is liable for all injury and damage occasioned thereby, unless the accident was unavoidable with the exercise of reasonable skill and care on the part of defend ant's servants." In passing upon this question in that case the court said: [2] The facts developed by the plaintiff, that is to say, the plaintiff and his witnesses testified that a car loaded with hay was situated upon the team track of the appellant's road in the town of Philadelphia about 72 yards north of the depot in said town; that there were several public crossings below the depot and one crossing between the car and the depot, and that the plaintiff had gone to the car on the team track with his wagon and team, which were animals of ordinary gentleness, and was unloading feedstuff from the car into the wagon in pursuance of the practice and custom of the rail-case the court gave the following instruction: road company to so deliver its freight to its customers; that, while so engaged in unloading, the train approached the depot from the south without giving the statutory signals of sounding the whistle and ringing the bell 300 yards from said crossing and keeping them ringing until such crossing was passed. Plaintiff also showed that the train approached at a rate of speed estimated by most of plaintiff's witnesses to be from 12 to 15 miles an hour, and by some of the witnesses as high as 20 miles per hour, and that no bell was rung and no whistle was blown, and that when the said engine`propelling the said train got even with the depot, which was situated some 15 or 20 feet from the track of the railroad, the engineer could see that plaintiff's team was frightened, and could see the position of plaintiff in undertaking to control and manage his team, and that, if the train had been promptly stopped, it could have been stopped before reaching the public crossing between the depot and where the plaintiff was unloading; that the engine continued to come forward, and did not make an effort to stop until it reached the public crossing, and that it finally stopped opposite the car where the plaintiff was unloading feedstuff; that the car on the team track was 17 steps from the track upon which the train was being operated-the main line; that it was 33 steps north of the public crossing between the depot and where the car being unloaded was situated. The testimony for the defendant was that it did give the signals by sounding the whistle and ringing the bell on approaching the station, and at each of said crossings, and that the train was not moving in excess of the statutory speed limit, and that it stopped when it discovered plaintiff's peril. The defendant requested and was granted a peremptory instruction as to the sounding of crossing signals. It requested and was refused a peremptory instruction as to the second count based upon the train being "The instructions asked by the plaintiff and given in the court below are applicable only in cases in which the injury has been inflicted by the 'running' of the trains of a railroad. There is no allegation in the declaration that the injury was caused by the running of the train within the meaning of the statutes on this subject, nor was there any proof from which said fact could have been found by the jury." Four of the judges are of the opinion that that case, I. C. R. Co. v. Weathersby, 63 Miss. 581, supra, is decisive of the controversy here, and that there was no liability on the defendant under the second count of the declaration. Two of the judges are of the opinion that a peremptory was properly refused, and that the law of the case is in accordance with the decisions of Y: & M. V. R. Co. v. Lambuth, 74 Miss. 758, 21 So. 801; L. & N. R. Co. v. Crominarity, 86 Miss. 464, 38 So. 633; Skipwith v. M. & O. R. Co., 95 Miss. 50, 48 So. 964. Four of the judges are of opinion. that the case should have been submitted to the jury under proper instructions under the third count of the declaration. Two of the judges are of the opinion that the defendant should have had a peremptory instruction on all of the counts. It follows that for the refusal of the peremptory instruction on the second count that the judgment must be reversed and the cause remanded for trial on the third count. Reversed and remanded. |