
    (80 South. 790)
    LOUISVILLE & N. R. CO. et al. v. PHILLIPS.
    (6 Div. 843.)
    (Supreme Court of Alabama.
    Dec. 19, 1918.
    Rehearing Denied Feb. 13, 1919.)
    1. Railroads <&wkey;>378 — Injuries to Persons on Tracks — Trespasser.
    Where engineer in charge of train negligently failed to give signals or alarms after discovering peril of plaintiff’s minor son, the fact that the minor was a trespasser is no defense.
    2. Appeal and Error &wkey;1043(6) — Review-Harmless Error.
    Error in sustaining plaintiff’s motion to exclude a portion of defendant’s answer to interrogatories filed under the statute is harmless, where the only counts upon which the matter could have been considered were eliminated.
    3. Railroads <&wkey;400(9) — Injuries to Persons on Tracks — Evidence—Jury Question.
    In an action for the death of plaintiff’s minor son, who was run down by defendant’s train, the question whether the engineer in charge was guilty of negligence in failing to sound alarms after discovering the minor’s position of peril held, under the evidence, for the jury.
    4. Death &wkey;>99(l) — Damages — Excessiveness.
    The damages provided by the homicide statute, Code 1907, § 2485, are punitive, and within the discretion of the jury, and a verdict will not be disturbed, unless the appellate court, after an examination of the entire record, concludes that, in the fixing of damages, the jury was actuated by passion or prejudice.
    5. Death <&wkey;99(3) — Damages — Excessive Award.
    An award of $15,000 damages in favor of plaintiff, whose minor son was killed by defendant’s train, held not to appear to have been the result of passion or prejudice on the part of the jury, and so will not be disturbed.
    6. Appeal and Error &wkey;>713 (3) — Review— . Record.
    Where the motion for new trial is overruled, the propriety of the overruling of the motion may be considered, though the judgment overruling the same is contained in the bill of exceptions only, and not in the record proper.
    Appeal from Circuit Court, Cullman County ; Robert C. Brickell, Judge.
    Action by J. W. Phillips against the Louisville & Nashville Railroad Company iand John Cobb, the engineer in 'charge of the train, for damages for the death of plaintiff’s minor son. There was judgment for plaintiff in the sum of $15,000, and defendants appeal.
    Affirmed.
    A. A. Griffith, of Cullman, Eyster & Eyster, of Albany, and George W. Jones and E. Perry Thomas, both of Montgomery, for appellants.
    F. E. St. John, of Cullman, for appellee.
   ANDERSON, C. J.

The fourth count of the complaint charged subsequent negligence on the part of the engineer for failing to give signals or alarms after discovering the peril of the intestate, and that said failure was the proximate cause of his death. It was not, therefore, necessary to negative the fact that intestate was a trespasser, and the count was not subject to this or any other ground of the defendant’s demurrer.

The trial court erred in sustaining the plaintiff’s motion to exclude a certain portion of the defendant’s answer to the interrogatories filed under the statute. Sullivan Timber Co. v. L. & N. R. R. Co., 163 Ala. 125, 59 South. 941. This ruling, however, was innocuous, as the only counts upon which it could have had any bearing were eliminated. This evidence related to efforts to stop the train, and the only count submitted to the jury was predicated solely upon a failure to signal the intestate, and not a failure to stop or slacken the speed of the train.

It was a question for the jury as to-whether or not the intestate was in a perilous position when the engineer discovered him upon the track, whether or not the engineer did or did- not discover that he was unaware of his peril, whether or not he blew the whistle or sounded an alarm, and whether or not a failure to do so was the proximate cause of the intestate’s death. The engineer admitted discovering the intestate and his companions on the track when within 200 feet of them, while rounding the curve in the rear end of the cut, and claimed that he blew the whistle; but there was a conflict as to whether or not the whistle was blown, as several witnesses who were present testified that they hoard no whistle, and it was for the jury to determine whether or not it was blown, and whether or not a failure to blow the same was negligence proximately causing the intestate’s death. L. & N. R. R. Co. v. York, 128 Ala. 305, 30 South. 676. It was also for the jury to detérmine whether or not the plaintiff’s witnesses could have heard the whistle, had it been blown. There was no error in refusing the general affirmative charge requested by the defendant.

The defendant moved for a new trial upon several grounds, but, as we understand appellant’s brief, the grounds insisted upon here are, first, the verdict was contrary to the weight of the evidence as to blowing the whistle; and, second, that t'he damage awarded is excessive. True, the trainmen testified positively to the blowing of the whistle, and the plaintiff’s evidence is what is termed negative; but the jury saw and heard the witnesses, got the location and surroundings of the plaintiff’s witnesses, and had data from which they could infer that they would have heard the whistle, had it been properly blown, and we are not prepared to say that the conclusion reached upon this phase of the evidence was plainly erroneous and contrary to the great weight of the evidence.

While the judgment is for a considerable sum, the suit was under the homicide statute (section 2485 of the Code of 1907), and the damages there provided are punitive and within the discretion of the jury, and the verdict will not be disturbed, unless the appellate court, after an examination of the entire record, concludes that in the fixing of the damages the jury was actuated by passion or prejudice, and which conclusion we do not reach in the instant cage. L. & N. R. R. Co. v. Bogue, 177 Ala. 349, 58 South. 392. Counsel for appellant, in brief, calls attention to the cases of Williams v. S. & N. R. R., 91 Ala. 635, 9 South. 77, and Hull v. Wimberly Hardware Co., 178 Ala. 538, 59 South. 568. The Williams Case was expressly dealt with in the case of L. & N. R. R. Co. v. Bogue, supra, wherein so much of the opinion as stated that the damages under this statute were compensatory, and not punitive, was declared dictum and unsound. The case of Hull v. Wimberly does not conflict with the Bogue Case, supra, or other cases here cited, holding that the damages under section 24S5 are punitive. Simpson, J., the writer of the opinion, expressed his individual views to the effect of the soundness of the Williams Case, and did not think the statement in the opinion was dictum, but further on conceded that the question was settled contrary to his views in the Bogue Case, supra, and accepted said case as the conclusion of the court, and the opinion which was concurred in proceeded upon the theory that the Bogue Case was the law.

Counsel for appellee insists that, as the judgment overruling the motion for a new trial is contained in the bill of exceptions only, and not the record proper, it cannot be reviewed or revised by this court, citing the cases of Smith v. Yearwood, 197 Ala. 680, 73 South. 384; Stokes v. Hinton, 197 Ala. 230, 72 So. 503, and So. Ry. Co. v. Nelson, 148 Ala. 88, 41 South. 1006. These cases make this requirement only when the motion is granted and appeal is taken from the judgment granting the motion only, and not to cases where a judgment is left in force by overuling the motion. Note the distinction in the Nelson Case, supra: It is true that neither the opinion nor the report of the case in Smith v. Tearwood, supra, discloses whether the motion was granted or refused; but the original record shows that the motion was granted, and the appeal was from said judgment alone. Here the motion was refused, and the appeal is upon the main judgment.

The judgment of the circuit court is affirmed.

Affirmed.

McClellan, satre, and Gardner, JJ., concur.  