#### Birmingham Ry. L. & P. Co. *v.*Randle.

*Damages for Injury to Person Grossing the Track.*

(Decided March 2, 1907.

43 So. Rep. 355.)

1. *Master anil Servant; Negligence of Servant; Responsibility of Master; Wilfulness.-*— An allegation of the negligence of the master may be sustained by proof of negligence of thq servant, and when the master participated in the negligence of the servant by directing the latter to do or to perform the negligent act this would operate to change the master’s act from simple negligence to intention or wilfulness, if the act complained of was intentionally or wilfully done.

2. *Same; Wilful Act of Servant.*— "Where the evidence did not 'disclose that the defendant corporation participated in the wilful act of its employe or thereafter ratified such act, a count charging defendant corporation with wilfulness or wantonness is not sustained by evidence of such acts on the part of its employe.

3. *Evidence; Expert Testimony; Subject*— Where a witness qtialifies as an expert concerning the operation of street ears he may testify as-to the distance in which a ear could be stopped, running at the rate of speed of the car in question.

*540•4. *Samej Conclusion.*— One may not testify that the motorman seemed to try ■ to stop the ear as quick as he could; he should be required to state what the motorman did in reference to an attempt to stop the car.

5. *Street Railroads; Injuries to Pedestrians; Action; Evidence.*— It having been shown by defendant’s -motorman that when he first saw deceased he was walking in a path -two or three feet from the side of the track, it was proper to permit him to state whether the car would have struck deceased in passing him at that distance from the car.

O. *Evidence; Opinion.*— A motorman is not entitled to testify whether he stopped the car as soon as he could but must state what he did to stoii the ear and whether that was all that could have been done to stop the car as soon as possible.

7. *Same; Insanity; Non Experts.*— A non expert testifying on an issue of insanity must be required to state the facts on which his opinion is based.

Appeal from Birmingham City Court.

Heard before Hon. Charles A. Senn.

Action by W. J. Randle, as administrator of the estate of John M. Randle, deceased, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

This was an action for damages for the negligent killing; of John M. Randle by running over him with a. car being operated by defendant over its street railway on a populous street in the city of Birmingham. The pleadings in the case sufficiently appear from the opinion. The witness Clayton was shown to have been a conductor on the car for several months. He was not a motorman, but he testified that he had not ascertained any knowledge as motorman, hilt that he had ascertained some knowledge as a conductor; that at the time of the accident he had been on the car about three days as' conductor, and had been conductor since the action; that lie had never stopped the car, but had seen the cars stopped; that he had experience in observing and noticing motormen stop cars, the rate of speed they were- going, and the distance in which they can be stopped. He was then asked: “Can you tell the jury as to- the distance the car would have to go before it could be stopped, *541Allien it Avas going at tlie rate of 15 miles an hour?” Witness ansAvered: “Upgrade as it Avas at that immediate distance, the motorman could have stopped the car in three lengths of the car, and the cars are from 28 to 30 feet long.” There was objection to the question, and a motion to exclude the answer. The following question was propounded to the Avitness J. M. Loggin: “Noaa7, I AA'ill ask you to state this, the question I asked you: From the point where you saicl you saAV the railroad track, where it struck Mr. Randle, Iioav far Avas it from that point to where you last saw the car before it did strike Mr. Randle, passing by your house?” The Avitness answered: “I will say that it was from 25 to 30 feet from AAdiere the car struck the man to' the point Avhere I last saw the car before it did strike him.” There was objection to both question and ansAver. The other facts sufficiently appear in the opinion of the court.

At the request of the plaintiff, the court gave the folloAving written charges: (1) “The court charges the jury, if they believe from the evidence that the killing of Randle Avas the result of the Avanton negligence of the motorman, your verdict must be for the plaintiff in such sum as the jury think proper, not exceeding $25,000.” (4) “The court charges the jury, if the jury are reasonably satisfied from the evidence that Randle’s death Avas caused by the wanton negligence of the defendant’s employe, the jury must find a verdict for the plaintiff.” (7) “The court charges the jury that if the motorman sa.AV Randle ahead of the car on the track in a dangerous position Avitli reference to the car, or if he saAV Randle in dangerous proximity to the track, it at once became his duty to use every means at- his command to prevent the injuries to Randle, and if he willfully failed to do so your verdict must be for the plaintiff.” (8) “The court charges the jury that, if they are reasonably satisfied from the evidence that the plaintiff has sustained the averments of the third count as applied to the law as given by the court, then the plaintiff is entitled to recover.”

The defendant requested a number of charges, which Avere refused, but Avhich it is unnecessary here to set out-. Charge 11, refused to the defendant, was the af*542Amative charge as to the third count of the complaint.

Motion was made for a new trial, predicated upon the errors and matters discussed in the opinion, but was overruled. There was a verdict for plaintiff, and his damages were assessed in the sum of $13,000.

Tillman, Grubb, Bradley & Morrow, for appellant.

—The doctrine that has been applied to a count charging wanton, willful or intentional acts on the part of the defendant should he applied to a count which avers the simple negligence charge to be negligence of the defendant *itself.*— City *Delivery Go. v.*Henry, 139 Ala. 169; *Bir. S. R. R. Go. v. Quoin,*37 South. 329; *Southern Ry. Go..v. Ycmeey,*37 South. 341; *Central of Ga. Ry. Go. v.*Freeman, 37 South. 387. Under the foregoing authorities, proof of the actual participation on the part of the defendant in the damnifying act was essential to a recovery by plaintiff under the third count. Theie are some emotions in appearances that cannot be described in any other way than that they seemed to'be so and for this reason Ed. Robinson’s testimony should have been *admitted.*— Thornton *v.'The State,*113 Ala. 32. In the light of the averments of the 2nd and 3rd counts, the motorman Duffy should have been allowed to answer the question as to whether or not he stopped the car as soon as he *could.*— Choate *v. Southern R-y. Go.,*119 Ala. 611; *A. G..S. Ry. Co. v: Lynov,*103 Ala. 138. Sanity being the normal condition of the mind, a witness until proper acquaintance may be permitted to state his opinion that a person is of sound mind, but the question ashed the witness Loggin did not fall within the rule thus laid *down.*— Rayland *v. The State-.,*125 Ala. 12; *Torrey v. Burn ey,*100 Ala. 57; *Parrish v. The State,*36 South. On the authorities cited to the first proposition in this brief, the charges given to plaintiff should have been *refused.*— L. cG *N. R. R. Go. v. Bloch,*89 Ala. 313. On these same authorities charges 2, 10 and 11 should have been given for defendant. Charge 3 should have been *given.*— Ha/rris *v. The*State, 96 AÍa. 24; *Smith v. The*State, 88 Ala. 73. On the same authorities charges 4 and 5 should have been given. Charges 6, 7 and 8 should have been *given.*— Hale *v. The**543*State,*26 South. -236. Counsel discuss other charges but cite no authority.

Denson & TIllman, and W. A. Denson, for appellee.

—Counsel filed an elaborate brief on the question of the signing of the bill of exceptions ,but if any brief was filed on the merits it did not come to the reporter.

DOWDELL, J. —

The cbmplaiint as originally filed contained three counts. The first count was subsequently withdrawn,, and the third count amended. The second count counted on simple negligence, and was in case, while the third count, as amended, was in trespass. This count charged that “The defendant wantonly, willfully, or iu tentionally ran its car or cars against and over the plaintiff’s decedent at said time and place killing the decedent,” etc. The damnifying act is alleged to have been the act. of the defendant corporation, and not of the servant or agent. We. are unable to diaw any distinction in principle between this case, in so far as the third count of the complaint is concerned, and the case of *City Delivery Co. v. Henry,*139 Ala. 161, 34 South. 389, which latter case has been followed in *Birmingham Son. R. R. v. Gunn,*141 Ala. 372, 37 South. *329 Sou. Ry Co. v. Yancey,*141 Ala. 246, 37 South. 341, and *C. of G. R. R. v. Freeman,*140 Ala. 581, 37 South. 387.

It is insisted by counsel for appellant that.the same doctrine should-apply to the second count of the complaint, in which the negligence averred is charged to have been the negligence of the defendant,, and not of its agent or seivant. We cannot assent to this contention. There is that difference between the averments of the second count and third count as amended that there is between an affirmative act and a failure to act. •Willfulness or intention can in no sense obtain in an act of negligence. In law, the principal is always responsible for the negligence of his agent, and in a sense the negligence1 of the agent is the negligence of the principal. The averment of negligence of the principal may therefore be sustained by evidence of the negligence of his agent. To show that the principal participated in the negligent act of its agent, by directing the agent to *544do or perform said act, would be to change it from negligence to intention or willfulness. There was a total absence of evidence showing, (or. tending to show, that the defendant corporation participated in any manner or form in the damnifying act, or any subsequent ratification thereof, and it therefore follows, from what we have said aborde, that the written charges given at the instance of the plaintiff, which were predicated upon wantonness, should have been refused.

Charge 11, requested by the defendant, should have been given. We find no error in the refusal of the .several other written charges requested by the defendant.

The witness Clayton was shown by the evidence to have possessed that degree of experience and knowledge in the operation and running of cars which would qualify him to testify as an expert to the distance in which a car could be stopped running at the speed of the car in question, and it was not error to allow him, against the objection of the defendant, to- give his opinion on the question. There was no error in admitting the' evidence of the witness J. N. Loggin, relative to the distance from whefe witness last saw the deceased on the track to where the car struck him. There was no error in the exclusion of the statement by the witness Ed Robinson that the motorman “.seemed to try to stop the car as quick as he could.” This was but an opinion or conclusion of the witness, and he should have been required to state the facts as to Avhat the motorman did after Avitness suav him put his.feet on the bell and his hand on the brake in order to stop the car.

It was competent for the Avitness Duffey, defendant’s motorman, after having testified that Avhen he first saw the deceased he Avas Avalking in a path by the side of the track about two or three feet from the street car track, to have further testified Avhether or not the car Avould have struck him in passing him at that distance from the track. The same may be said as to the statement contained in the showing made for the absent Avitness James C. Loggin. Motorman Duffey was asked the question: “Tell the jury AArhether or not you stopped the car as soon as you could?” The court sustained an objection by the plaintiff to this question. The witness *545should have been required to state the facts as to what he did in order to stop the car, and, after having so stated these facts, it would have then been proper to have further inquired of him as to whether what he did was all that could have been done to stop the car as soon as possible

The rule is well established in this court that a non-expert must state the facts upon which he bases his opinion in testifying as to *insanity*— Ragland *v. State,*125 Ala. 12, 27 South. 983; *Burney v. Torrey,*100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33; *Parrish v. State,*139 Ala. 16, 36 South. 1012.

For the error pointed out, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Weakley, C. J., and Tyson and Simpson, JJ., concur.