Action by parent, the father, for damages for the wrongful killing *Page 628 by the defendants of his minor child. Code, § 2485. The damages recoverable in such actions are punitive only. L. N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790.
The plaintiff's 20 months old child strayed, unattended, on the railway track of the company, and an engine and train of the company, with Engineer McKenzie (also a defendant) in charge, ran over the child, killing it. Counts 1 and 2 of the complaint are designed to attribute the child's death to McKenzie's negligence after the engineer discovered the peril of the child. If it were assumed that count 1 was defective in omitting to expressly aver that the child was in peril before the approaching train, no possible prejudice resulted to the defendants in overruling the demurrer to count 1, for the reason that count 2, proceeding on the same theory, was entirely sufficient in that respect. It is at least quite doubtful, however, whether count 1 is subject to the indicated criticism; the facts (not mere conclusions) averred being hardly susceptible of any other interpretation than that the child, only 20 months old and "alone," was in peril before the approaching train that killed it.
The insistences for error in refusing affirmative instructions against a recovery by plaintiff, as well as in overruling the motion for new trial on the ground that the evidence did not warrant a verdict for plaintiff or that the verdict was contrary to the evidence, cannot be supported on the record here. There was evidence and inferences from evidence going to establish every essential to a right in plaintiff to recover on the theory stated. There was evidence and inferences from evidence going to refute the case made for the plaintiff. It was the jury's province and function to decide the issues; to determine the truth from the conflicting evidence; to accord or to refuse credit to the testimony of the witnesses; and, in the state of the evidence disclosed by the record, it cannot be affirmed that the trial court erred in overruling the motion for new trial on the grounds stated just above. Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738, and numerous others in its line. There was no objection to the recital by the witnesses, on both sides, of the gruesome details of the child's death, nor to the exhibition of the clothing, etc., associated with its death. These circumstances, presented without any objection and, so far as appears, admissible in evidence, possess no tendency to show passion, bias, or prejudice on the part of the jury in the verdict rendered.
A photograph, or photographs, of the locus in quo were offered in evidence. Subsequent to the matters to be mentioned, the photographer identified the photographs as those made by him. No photograph is shown by the record. Being a part of the evidence before the trial court, a full record here required their presence therein. Montevallo Mining Co. v. Underwood,202 Ala. 59, 62, 79 So. 453. A "flag" was shown on a photograph exhibited to the witness L. R. Cross. Plaintiff's counsel propounded these questions to him:
"I will ask you this: Does this point here, this flag here — is that the point where the blood was on the railroad track and cross-ties?"
Also:
"Is this — what flag is this?"
There was no error in overruling objections to these questions. They sought to elicit matter explanatory of the photograph and serviceable to refer the object (flag) to the place where the blood was on the track, not where the child was struck. The bill of exceptions recites:
"After the testimony was closed, A. R. Powell, of counsel for plaintiff, made the opening argument for the plaintiff. In discussing the law of the case to the court, he cited among other authorities the case of Louisville Nashville Railroad Company et al. v. Phillips, 80 So. 790;1 after the calling the attention of defendants' counsel to the book and page of same, and referring to said case, stated in the presence and hearing of the jury, after reading the facts of said case as reported, that said case was against the Louisville Nashville Railroad Company and its engineer, John Cobb; that the cause of action in said case was similar to this case, to the extent that the damages claimed were for the negligent killing of the plaintiff's minor son by defendant and its engineer; that the verdict of the jury in that case was $15,000, and that the Supreme Court on appeal held that the verdict was not excessive, and that the measure of damages was punitive and within the discretion of the jury, and also stated to the court that some of the law applicable to that case was applicable to this case. The foregoing argument of counsel was addressed to the judge; said attorney then turned and addressed the jury on the facts of the case at law, without referring in his remarks to the jury to the said Phillips Case.
"One of the attorneys for the defendants, at the close of the argument to the jury of the attorney for the plaintiff, in opening his argument for defendant, called the attention of the court to the foregoing statements made by the attorney for the plaintiff in the presence and hearing of the jury, stating that the facts in the foregoing case referred to by the attorney for the plaintiff should not be considered by the jury in arriving at a verdict, to which the court assented and stated that the jury would be so instructed."
The sixth and seventh grounds of the motion for new trial are predicated on the occurrence described in the quotation from the bill of exceptions. It was not error to overrule these grounds of the motion for new trial. The reading of the report of L. N. R. R. Co. v. Phillips, supra, was to the court, not to the jury. Being a sound decision in that *Page 629 case, it was not improper or objectionable to read the report of the case to the court. No objection to the reading of it on that occasion was made for defendants, appellants; the record reciting that counsel for plaintiff first, before reading, called the attention of counsel for defendants to the book and page. If prejudice in the jury's minds had been anticipated or conceived as a result of the impending reading of the Phillips Case to the court in the hearing of the jury, objection should have been then made. Since counsel for plaintiff had the right to read the report of the Phillips Case to the court, unless the court in the exercise of a sound discretion forbade it, the real basis of the complaint in these grounds of the motion for new trial (sixth and seventh) is that the jury was not removed from the courtroom during this reading to the court. No such action by the court was invoked. Instead of invoking the court's discretionary power to remove the jury during the reading of this report of another case, counsel for defendants correctly asserted that the facts of the other case "should not be considered by the jury in arriving at a verdict, to which the court assented and stated that the jury would be so instructed." In the oral charge the court instructed the jury as follows:
"You are not to be guided by the verdict in any other case or what another jury may have done in other transactions, because each case stands upon its own footing, and the measure of culpability and responsibility of the defendants in different cases depends upon different states of fact, and therefore verdicts in other cases are not to be a guide to the jury in this case."
The cases of B. R., L. P. Co. v. Gonzalez, 183 Ala. 273,287, 61 So. 80, Ann. Cas. 1916A, 543, and others in its line, concerned arguments to juries, involving different considerations from those here involved, among which is that here the reading of the Phillips Case was to the court, not in itself improper, as is the vice in instances where an improper argument or assertion is made to the jury.
The jury assessed the damages at $15,000. It is insisted that this amount is excessive. The damages in such cases being punitive only, the measure of the amount of a proper assessment is the degree of culpability causing the death. Code, § 2485. This court has reviewed the elements of fact and circumstance bearing upon this phase of the issue. As stated before, the evidence was in conflict on the substantial issue of negligence vel non on the part of the engineer. There was, however, evidence and inferences therefrom that invited the conclusion attained by the jury, viz. that the child's death was proximately caused by the engineer's negligence after the discovery of the child's peril. At what distance from the child the engineer, who testified he was looking ahead, discovered the child and realized the object was a child, was an inquiry of fact under the conflicting evidence; the defendants' witness Harris testifying that from the mail car window he saw the child "toddling down the track" about or just over a train length from the point of the curve which the evidence went to show was 1,000 feet from the place where the child was struck, though Harris fixed the distance between the train and the child at "about 100 yards distant." It was affirmed, without objection, by more than one witness, though denied by the engineer and others, that the engineer said in explanation of the event that he thought the child would get off the track when he blew at it. There was evidence, open to acceptance by the jury, that, with reasonable care and diligence, the train could have been stopped before striking the child. If, as the jury found, the engineer discovered the peril of the child in time to have averted its injury by the use of the requisite care, skill, and diligence to stop the train, and thereafter speculated in so grave a situation upon this 20 months old child's appreciation of its danger and its ability to get off the track, it cannot be affirmed that such speculation did not characterize the conduct or omission of the engineer with a degree of culpability that was well measured in the amount of this verdict.
No error appearing, the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, THOMAS, and MILLER, JJ., concur.
1 202 Ala. 502.
On Rehearing.