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(102 8o.) 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, un

ters which would constitute a good defense if less in so doing unnecessary noises or emis

specially pleaded. sions of steam were made, and these noises,

[!] Counts 1 and 2 specifically set out the or the movement of the train, or the emission of steam, were recklessly or wantonly made initial negligence upon which plaintiff reor done after the discovery of peril, or were lied to fix liability, and under these counts made or done with the intention of frightening he could not recover for negligence not specthe animal in question.

ified; any negligence occurring after the “B. I charge you, gentlemen of the jury, the discovery of peril is not embraced in these authority to operate a railroad includes the counts, and for such subsequent negligence right to make the noise incident to the move, there can be no recovery. L. & N. R. R. Co. ment and workings of its engine, as in the

v. Lowe, 158 Ala. 394, 48 So. 99. escape of steam, and the rattlings of cars; and

[2] Subsequent negligence may be proved also to give the usual and proper admonitions of danger, as in the sounding of whistles and under a count alleging negligence in general the ringing of bells. It is not liable for injuries terms. In L. & N. R. R. Co. v. Calvert, 172 occasioned to horses hitched along the highway Ala. 597, 55 So. 812, it was held that a count or street taking fright at noise occasioned by alleging that the employees in charge of a the lawful and reasonable exercise of these train on defendant's railroad so negligently rights and duties."

managed it that the engine ran against

plaintiff's intestate at a public road crossing S. A. Lynne, of Decatur, for appellant.

proximately causing his death, was sufficient Eyster & Eyster, of Albany, for appellee.

to authorize a recovery for subsequent negli

gence. Hines, Director General, v Champion, FOSTER, J. This is an action by T. J. 204 Ala 227, 85 So. 511; A. G. S. R. R. Co. Newsome against the Louisville & Nashville v. McWhorter, 156 Ala. 269, 47 So. 81. Railroad Company for damages for injuries

[3] The third count of the complaint avers to a horse and damage to a buggy and har. negligence in general terms, and also avers ness, because of the alleged negligent acts of that the horse was hitched to a post near the the defendant.

railroad track "and in sight of defendant's The complaint contained three counts. On employees in charge of its locomotive." A the issues submitted to the jury a verdict recovery for subsequent negligence may be was rendered for the defendant and from the had under this count. judgment rendered on the verdict the plain

[4, 5] The first assignment of error relates tiff prosecutes this appeal. Each count of the to the court's oral instructions to the jury. complaint contained averments of fact show- The excerpt from the oral charge to which ing a substantial cause of action,

exception was reserved is as follows: The first count avers that the defendant

"Gentlemen of the jury, if you should find company was operating with steam a locomotive along a street in the city of Decatur, that this horse was scared or afraid of the and that the engineer in charge negligently train, and was afraid of the emission of the allowed or caused the steam to escape, which hitched the horse there in front of the store

steam, and if you further find that the plaintiff was calculated to frighten a horse of ordi- and that this condition of the horse, his nerynary gentleness, as was the horse of plaintiff, ousness, contributed, even in a remote degree and that the sight and noise frightened the to the injury occasioned, then the plaintiff borse which was hitched to a regular hitch would be barred of recovery on account of his ing post on the street, and caused him to run contributory negligence, because, if his own away and break the buggy to which he was

act was negligent, and that act contributed attached, and so frightened the horse as to to the injury occasioned, then negligence on permanently injure him and render him of his part would bar him of the recovery, be

cause the law will not allow a man to contribless value. The second count avers that while the his own injury, and permit him to recover for

ute to his own injury, to help and be a part of horse was standing hitched to the post on any damages occasioned." the street an agent or servant of the defendant in charge of the locomotive and The negligence of the plaintiff must be a in the line and scope of his employment, neg- concurring proximate cause of the injury in ligently caused the locomotive to emit, with order for such negligence to be available unà loud noise, a large and unnecessary vol. der the defendant's plea of contributory neg. ume of steam, which came near to or envel- ligence. Reaves v. Anniston Knitting Mills, oped the horse causing him to take fright, 154 Ala. 565, 45 So. 702; North Birmingham

St. Ry. Co. v. Calderwood, 89 Ala. 247, 7 So. The third count avers that the horse was 360, 18 Am. St. Rep. 105; Montgomery Gas bitched within a few feet of the railroad Co. v. Railway Co., 86 Ala. 372, 5 So, 735, track and within sight of defendant's em

Plaintiff's act or omission, when only a reployees in charge of its locomotive; the horse mote cause or a mere antecedent occasion or took fright and ran away "owing to the neg- condition of the injury, is not contributory ligence of the defendant's employees in run- negligence. L & N. R. R. Co. v. Marbury

etc.

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Lumber Co., 125 Ala. 261, 28 So. 438, 50 L., rect principle of law that "when an engine
R. A. 620.

is managed in such a reckless and negligent
In McCaa v. Thomas, 207 Ala, 211, 92 So. manner as to frighten horses, and cause them
414, the .court condemned charges to the ef- to run away, the company is liable for the
fect, “if the jury believe from the evidence consequences—as where the engineer sudden-
that plaintiff's negligence or failure to exer- ly discharges a jet of steam near a passing
cise reasonable care in the slightest degree team.” L. & N. R. R. Co. v Jenkins, 196
contributed to his injuries, he cannot recov- Ala. 140, 72 So. 70. But when the plaintiff
er," and declared the rule to be, “His negli- avers that an unnecessary volume of steam
gence or failure to exercise reasonable care was emitted from the engine, the burden is
must have contributed procimately to his upon him to prove the averment to the rea-
injury.” This is the established rule in this sonable satisfaction of the jury. Such is the
state. Seaboard Air Line Ry. Co. v. Laney, effect of the said charges.
199 Ala. 654, 75 So. 15; Tenn. Co. v. Bridges, [8] Charge 9 was invasive of the province
144 Ala. 229, 39 So. 902, 113 Am. St. Rep. 35. of the jury. It cannot be said as a matter

There is no difference between the words of law that it was contributory negligence "slightest” and “remotest” as applied to the for the plaintiff to knowingly hitch a horse degree of negligence. "Remote” is defined as easily frightened in close proximity to plaininconsiderable, slight; and “remote cause istiff's track. Montgomery Street Railway Co. a cause operating mediately through other v. Hastings, 138 Ala. 446, 35 So. 412. causes to produce an effect.” Standard Dic [9] Charge 8 states a correct proposition of tionary.

law. The plaintiff could have requested an If the facts set up as constituting plain- explanatory charge if he had so desired. tiff's negligence created a condition or a sta [10] Charges 3, 5, A, and B state the law tus which "even in a remote degree” contrib- correctly. Stanton v. L. & N. R. R. Co., 91 uted to the injury, the plaintiff was not de- Ala. 386, 8 So. 798; Oxford Lake Line Co. barred from a recovery by reason of such al- v. Stedham, 101 Ala. 378, 13 So. 553. leged contributory negligence. If the plain [11] Charge 4 is argumentative, but the tiff hitched the horse to the post and "the giving of the charge is not error to reversal nervousness of the horse contributed even in as it is a correct statement of the law. a remote degree to the injury" the plaintiff [12] A witness may give his opinion as to was not debarred from a recovery. No neg- the value of a horse which he has owned and ligence of the plaintiff which remotely con- knows well, although he is not an expert. tributes to the injury will debar him from a Rawles v. James, 49 Ala. 183; Railroad Co. recovery. The court fell into error in giv- v. Moody, 92 Ala. 279, 9 So. 238. ing the oral instructions to which exception [13] A witness may not be allowed to testiwas reserved.

fy "I think he was as good a horse as I ever [6,7} Charges 1, 2, 6, 7, and 10 were prop-drove," as this is a mere conclusion. Thomperly given as to count 2. In said count the son v. Hartline, 84 Ala. 65, 4 So. 18. plaintiff assumed the burden of proving that The judgment of the circuit court is rean unnecessary volume of steam was emitted versed, and the cause remanded. from the engine. And we recognize as a cor Reversed and remanded.

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(102 So.)

whereupon Mr. Gorman answered with a GURLEY et al. v. GORMAN. (No. 24381.) | cross-bill, seeking a divorce from her, and (Supreme Court of Mississippi, Division A. pleading his release for the sum of $330. Ko Dec. 15, 1924.)

divorce was granted.

We think the subsequent events regarding (Syllabus by the Court.)

the separation and divorce proceedings beHusband and wife @278(2)-Settlement con- tween Mr. and Mrs. Gorman are immaterial stituting part of collusive agreement for did for the purpose of deciding the question prevorce held void.

sented to us on this appeal, and therefore Property settlement constituting part of a we shall not state these proceedings or the collusive agreement between husband and wife outcome thereof. for divorce held void because repugnant to pub After hearing all the testimony, the chanlic policy.

cellor decided that the release was invalid, Appeal from Chancery Court, Alcorn Coun- for the reason that the settlement and re

lease was the result of a collusive agreement ty; Allen Cox, Chancellor.

between the husband and wife for the purSuit by Mrs. Pearl Gorman against C. B. pose of promoting or facilitating the proGurley, executor, and others. Decree for curement of a divorce, which collusion was plaintiff, and defendants appeal. Affirmed.

contrary to public policy and vitiated the setB. F. Worsham, of Corinth, for appellants. tlement; and the renunciation of the will W. C. Sweat, of Corinth, for appellee.

was allowed by the court and the wife per

mitted to take her share in the estate of HOLDEN, J. This is an appeal from a de- the deceased husband. cree sustaining the right of the widow, Mrs. The appellant contends the settlement made Pearl Gorman, to renounce the will of her between the husband and wife as evidenced deceased husband, John Gorman, and to take by the written release was valid because ber legal share of his estate; the other heirs the proof was not sufficient to show that the at law contesting the right to renounce the settlement was the result of collusion bewill, on the ground that the deceased while tween the husband and wife to secure a diliving had fully settled with his wife for her vorce; that the written release was not subshare in his estate.

ject to contradiction by oral proof; and that James Gorman died, leaving an estate val- the release was sufficiently broad in its terms ued at about $5,000; and he left surviving to cover the present or any future interest him two children by a former marriage, and the wife had or might have in the estate of the appellee, his wife. He left a will, giving the husband. the bulk of his estate to his son, and be

The appellee urges that the decree of the queathing only $5 to his wife. Mrs. Gorman chancellor is correct on two grounds, viz. : renounced the will, and asked that she be First, the written release is not sufficiently. allowed to take her legal share of one-third definite to cover any future inheritable inof the estate. The executor and the son terest the wife might have in the estate of answered, and denied her right to take her the husband; and, second, that, even though legal share of the estate because she had the release is sufficiently broad to cover the signed a release to all of her interest in the future interest of the wife in the estate of estate for the consideration of $330 before the husband, still the settlement evidenced the death of her husband.

by the written release is void because it was This settlement, as evidenced by the writ- made upon and grew out of a collusive agreeten release, appears from the record to have ment between the husband and wife to pro come about in this way: James Gorman and cure a divorce. his wife had not been living in harmony, and

We think the position of the appellant is they went together to the office of a lawyer untenable, and that of the appellee is sound. and there discussed the differences between Because, if we concede the terms of the writthemselves and a settlement thereof.

ten release were broad enough to cover all At this conference, which was attended future interest the wife might have in the only by Mr. Gorman, his wife, and the law- estate of the deceased husband, still it is yer, it was agreed that Mr. Gorman should our opinion the release and settlement with pay his wife $330 in settlement of any claim the wife was invalid because it grew out that she might have against his estate, and of and was based upon the agreement or unthat Mrs. Gorman would file a bill for diderstanding between the husband and wife Force, and Mr. Gorman agreed that he would to secure a divorce. not contest the divorce suit. After the mon

The collusive understanding that the bill er was paid over to her and the written would be filed by the wife and the husband release signed by her, the lawyer proceeded agreeing not to oppose it occurred at the to prepare and file the bill for divorce, and time the release was given, and was part the parties then left the office. Afterwards of the settlement transaction resulting in the it seems that the bill was dismissed and payment of the money and the execution of a new suit for alimony instituted by the wife, ) 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 80.--5

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sion between the parties tainted the con-| tiff's precarious situation, to prevent the in-
tract of settlement, and this infection nulli- jury.
fied the release, and oral testimony showing
this legal infirmity, due to collusion, and

In Banc. contrary to the public policy of our state, was

Appeal from Circuit Court, Neshoba Counadmissible to invalidate the written release, ty; G. E Wilson, Judge. similarly as in a case where fraud is shown

Suit by H. T. Hardy against the Gulf, to vitiate a contract.

Mobile & Northern Railroad Company. From We have considered the evidence in the

a judgment for plaintiff, defendant appeals. record showing that the settlement and re

Reversed and remanded. lease was induced by, and was a part of, the collusive agreement to secure the di Flowers & Brown, of Jackson, for appelvorce, and we think it was sufficient to sup- lant. port the finding of fact by the chancellor Earl Richardson, of Philadelphia, and Mathat the settlement was the direct result of rion W. Reily, of Meridian, for appellee. the collusion between the parties. The rule seems to be well established in

PER CURIAM. The appellee sued the apall other jurisdictions, and we approve and pellant for a personal injury. The declaraadopt it, that collusion between husband and tion contained three counts: First, the failwife to obtain a divorce is illegal and con

ure to ring the bell and blow the whistle, trary to public policy, and that any contract etc., on approaching public crossings in the or agreement made by virtue of or in con- town of Philadelphia; second, for the operanection with such collusive agreement is un- tion of said train at a greater rate of speed enforceable in the courts, and cannot be than six miles an hour within the corposet up as a binding contract. Therefore we hold that the decree of the third, that on said oceasion said train was

rate limits of the town of Philadelphia; chancellor in allowing the appellee to renounce the will and take her legal share in being driven at a rapid rate of speed and in the estate was correct, because the settle- a northerly direction and in the direction of ment between the husband and wife was void plaintiff's team and defendant's warehouse, for the reasons heretofore given. 9 R. C. L. where plaintiff was unloading feed from dept. 13, p. 254; Palmer v. Palmer, 26 Utah, fendant's car; that when said train was 31, 72 P. 3, 61 L. R. A. 641, 99 Am. St. Rep. more than 100 yards from a point on said

track opposite from where said wagon was
820.
Affirmed.

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,
GULF, M. & N. R. CO. V. HARDY. and that there was imminent danger of said
(No. 24193.)

team running away and seriously injuring

the plaintiff unless said train was instantly (Supreme Court of Mississippi. Dec. 15, 1924.) stopped; that, notwithstanding the fact that (Syllabus by the Court.)

the team was in plain view of the said en

gineer and fireman, after the train came to 1. Railroads 401(3)-Instruction basing lia. bility for injury by frightened team on speed a point where the said engineer and fireman of train held improper.

saw the said team and the plaintiff, the said In a suit for damages for personal injury engineer and fireman, after seeing the pooccasioned by frightening a team where there sition of peril of the plaintiff, recklessly and is no physical contact between a train and the carelessly failed to stop said train, and conteam or the person injured, it is error to sub-tinued to drive said train until the train mit an instruction to the jury that they may was opposite the point at which said team find for the plaintiff if the train was being op

was standing, when suddenly all of the erated over 6 miles an hour in a city, and such brakes were put on the said train and the operation was the proximate cause of the steam was caused to be emitted from same, fright of the animals.

and an unusual and startling noise was 2. Railroads 360(1) - Railroad must use thereby made by said train, thereby increas

reasonable diligence to prevent injury to driv. ing the terror of the horses and mules; that er of team frightened by train.

a result of the negligent action on the Where a train is being operated in a mu- part of employés of the defendant railroad nicipality, and is approaching a team stationed company who were operating the said train at a car on a team track, and the employé op- the team became frightened and unmanageerating it sees the horses are frightened and that their owner is in a position of danger, and able, notwithstanding the fact that the plainfails to exercise reasonable diligence to pre

tiff was doing all in his power to control vent the injury, the company is liable for the said team, and the horses swung around tonegligence of its employés in failing to do what wards the wheels of plaintiff's wagon, and was reasonably necessary, in view of the plain-l caused one of the mules to fall upon the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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as

(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 [2] The facts developed by the plaintiff, ground, and on the third count, to the jury that is to say, the plaintiff and his witnesses under instructions. There was a verdict for testified that a car loaded with hay was the plaintiff for $8,500. situated upon the team track of the appel [1] Appellant insists that the refusal of lant's road in the town of Philadelphia about the peremptory instruction as to the secord 72 yards north of the depot in said town; count of the declaration was error. That is, that there were several public crossings be that no liability could be predicated upon low the depot and one crossing between the the train being operated in excess of 6 miles car and the depot, and that the plaintiff had per hour for the reason that there was no gone to the car on the team track with his physical contact with the train which prowagon and team, which were animals of or- duced or resulted in the injury. It is indinary gentleness, and was unloading feed- sisted that the case is controlled by I. C. R. stuff from the car into the wagon in pursu- Co. v. Weathersby, 63 Miss. 581. In that ance of the practice and custom of the rail- case the court gave the following instruction: road company to so deliver its freight to its

"If the jury believe from the evidence in this customers; that, while so engaged in unload

case that the plaintiff's mare was killed by or ing, the train approached the depot from the because of the running of a locomotive of desouth without giving the statutory signals of fendant's within the corporate limits of the city sounding the whistle and ringing the bell of Water Valley, when said locomotive was run300 yards from said crossing and keeping ning at a greater rate of speed than six miles them ringing until such crossing was passed. an hour, then the defendant is liable for all inPlaintiff also showed that the train ap jury and damage occasioned thereby, unless the proached at a rate of speed estimated by reasonable skill and care on the part of defend

accident was unavoidable with the exercise of most of plaintiff's witnesses to be from 12

ant's servants." to 15 miles an hour, and by some of the witnesses as high as 20 miles per hour, and that In passing upon this question in that case no bell was rung and no whistle was blown, the court said: and that when the said engine propelling the “The instructions asked by the plaintiff and said train got even with the depot, which given in the court below are applicable only in was situated some 15 or 20 feet from the cases in which the injury has been inflicted by track of the railroad, the engineer could see the 'running' of the trains of a railroad. There that plaintiff's team was frightened, and could is no allegation in the declaration that the insee the position of plaintiff in undertaking jury. was caused by the running of the train to control and manage his team, and that, within the

meaning of the statutes on this subif the train had been promptly stopped, it fact could have been found by the jury."

ject, nor was there any proof from which said could have been stopped before reaching the public crossing between the depot and where Four of the judges are of the opinion that the plaintiff was unloading; that the en- that case, I. C. R. Co. v. Weathersby, 63 gine continued to come forward, and did not Miss. 581, supra, is decisive of the contromake an effort to stop until it reached the versy here, and that there was no liability public crossing, and that it finally stopped on the defendant under the second count of opposite the car where the plaintiff was un- the declaration. Two of the judges are of loading feedstuff ; that the car on the team the opinion that a peremptory was properly track was 17 steps from the track upon refused, and that the law of the case is in which the train was being operated—the accordance with the decisions of Y: & M. main line; that it was 33 steps north of V. R. Co. v. Lambuth, 74 Miss. 758, 21 So. the public crossing between the depot and 801; L. & N. R. Co. v. Crominarity, 86 Miss. where the car being unloaded was situated. 464, 38 So. 633; Skipwith v. M. & 0. R. Co., The testimony for the defendant was that 95 Miss. 50, 48 So. 964. Four of the judges it did give the signals by sounding the whis- are of opinion that the case should have been tle and ringing the bell on approaching the submitted to the jury under proper instrucstation, and at each of said crossings, and tions under the third count of the declarathat the train was not moving in excess of tion. Two of the judges are of the opinion the statutory speed limit, and that it stopped that the defendant should have had à perwhen it discovered plaintiff's peril.

emptory instruction on all of the counts. The defendant requested and was granted

It follows that for the refusal of the per& peremptory instruction as to the sound emptory instruction on the second count that 'ing of crossing signals. It requested and the judgment must be reversed and the cause was refused a peremptory instruction as to remanded for trial on the third count. the second count based upon the train being

Reversed and remanded.

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