95 Ala. 397 | Ala. | 1891
Tliis action was brought to recover damages for personal injuries to plaintiff’s intestate, James C.. Grant, who was an employe of defendant as a brakeman, and which resulted in his death. The original complaint contained two counts. The court sustained a demurrer to each of these counts. The plaintiff amended his complaint by adding a third count, upon which issue was joined. The court gave the general affirmative charge to the jury, to find for the defendant. It is insisted that the court erred in sustaining the demurrer to the first and second counts. The plaintiff had the benefit of every issue under the third count, which could have been raised under the first and second counts, to which the demurrer was sustained. If the court erred in sustaining the demurrer, it was error without injury. — Gilman v. Jones, 87 Ala. 704; Sharp v. First National Bank, 87 Ala. 644.
The facts show that deceased was a brakeman in the employ of the defendant railroad company; that as the train was running between Bessemer and Bedding, it separated into two sections; that the much larger section attached to the engine moved more rapidly forward; and that deceased was on the hindmost section, which was composed of only a caboose and box-car. The evidence also shows that, when a train separates into two parts, it becomes the duty of the brakeman to apply the brakes, and stop the cars with all practicable dispatch. There was no evidence offered by plaintiff to sustain the charge of negligence in the manage-men and control of the engine and cars by the conductor and engineer, or that the side-ladder mentioned in the complaint was loose or defective, or that there was any defect in the brake-rod or brake-wheel. The evidence showed that the box-car was broken on top at the right-hand corner facing the engine. The evidence shows that this hole was known to the conductor before the injury, and had not been
1 If the facts and circumstances proven are such that a jury would be authorized to legally infer that deceased was engaged in the performance of his duties as brakeman; that the hole in the top of the box-car was the proximate cause of the injury and if there was no evidence of contributory negligence, then the court was not authorized to give the general charge for the defendant; but, under such proof, the question, should have been submitted to the jury. If, however, the facts proven leave the question as to what caused the injury wholly in conjecture, as distinguished from legal inference, there was nothing to submit to a jury. The burden is upon the plaintiff to make out his case. He must not only aver and prové both an injury and negligence, but he must go further and establish a proximate causal connection between the injury and the negligence.
The witness Brandon testified as follows: “I last saw Grant standing on the box-ear, just a few minutes before I saw him on the track dead. The cars were parted when I last saw him standing on this car. I did not see him fall. He did not fall at the time the cars parted, but after they had parted and gotten a considerable distance apart.” And being recalled, testified further, “The corner of the car was
In Burns v. Chicago, Milwaukee & St. Paul Railway Co., 69 Iowa, 450, tbe following facts and propositions of law as applicable thereto are stated: Plaintiff’s son, an experienced brakeman, when last seen alive, was performing bis duty in setting the brakes on a freight car on which be was riding. A minute later, tlie train having separated at'tbe first coupling in front of him, be was thrown to tbe ground, run over by the rear end of tbe train, and killed. Although there was no other evidence bearing on tbe question of negligence, or of freedom from it on bis part, “held tbat tbe court was justified in submitting it to tbe jury, in an action against tbe company for negligence.” Tbe court uses this further language : “We are not prepared to say there was no evidence which authorized tbe court to submit tbe question of due care on tbe part of tbe deceased to tbe jury, who bad tbe right to consider all tbe circumstances, including tbe known habits of tbe deceased, and tbe instinct of self-preservation with which all men are imbued. If the cause or manner of the death were luholly unknown, it may be that a different rule should prevail.” We italicise tbe last sentence.
In tbe case of Allen v. Willard, 57 Penn. St. Rep. 38, tbe facts were, tbat Allen was found dead in a pit or cellar which bad been extended out into tlie side-walk, about two and a half feet, and left unguarded. It was shown tbat Allen was a sober, careful man, whose business called him to pass tbe night be fell into tbe pit, along tbe side-walk. The court held: “Tbe natural instinct which leads men in their sober senses to avoid injury and to preserve life, is an element of evidence. In all questions touching tbe conduct of men, motive, feeling and natural instincts are allowed to have their weight, and to constitute evidence for tbe consideration of courts and juries. Adding these to tbe circumstances of tbe case, we can not say tbat the evidence was insufficient to go to tbe jury as proof of actual neglect on tbe part of tbe
In the case of Strong v. City of Stephens Point, 62 Wis. 255, the facts were, that Edward Strong' a boy, was seen crossing a bridge over a slough, and going in the direction of a hole in the bridge. The attention of the witness was diverted for a few seconds, and when he looked back the boy had disappeared. His hat and body were found in the water underneath, and a few feet west of the hole, in the direction of the current. It was contended that there was no evidence that the boy fell through the hole. The court held, that though the testimony was circumstantial, the fact that the boy was seen on the bridge near the hole, just before he disappeared, the place where the body and hat were found, in relation to the hole, indicated that he had fallen through it, and was sufficient to warrant the jury in finding that such was the manner of his death.
In the case of Gay v. Winter, 34 Cal. 164, after referring to the case of Lane v. Crombie, 12 Pick. 176, which held that the burden of the proof was on plaintiff, not only to shoAv negligence and misconduct on the part of the defendant, but ordinary care and diligence on his part, and failing in this, there is no case for the jury, the California court declares the rule as follows : “While we admit the general rule to be, that the burden of proof is on the plaintiff to make a case which will leave him blameless, we do not understand that he must prove affirmatively, in all cases, that he exercised ordinary care and diligence. In the absence of any direct proof, we are of the opinion that the jury are at liberty to infer ordinary care and diligence on the part of plaintiff from all the circumstances of the case, his character and habits, and the natural instincts of self-preservation. If the plaintiff makes a case which does not charge him with negligence, we think his case should be allowed to go to the jury, with instructions that, if
In the case of Corcoran v. Boston & Albany R. Co., 133 Mass. 507, the facts were, that plaintiff’s intestate was a brakeman in the employ of the defendant. On the night he was killed, the train was passing through a cut, the sides of which were of rock, and the rail was five or six feet from the face of the rock. Ice had formed on the side of the rock, and projected about two feet; the freight car projected twenty-four inches beyond the rail, and a man on a ladder on the side of the car would project from one to two feet. It was the duty of the brakeman to ascend a ladder on the side of a house car to set the brakes on that car. His lighted lantern was seen on the top of this car, and was afterwards found there. An impression was found in the snow, indicating that something heavy had fallen there, by the side of the track, just east of the place where the ice on the side of the cut came nearest to the track. Blood spots were found some distance east of this point, and it was further away that the body was found. It was the duty of the section men employed by the defendant to see that the cut was kept in proper and safe condition and free from ice. The trial judge ordered a verdict for the defendant. On appeal, the court held that “the burden of proof is upon the plaintiff to show that her intestate was using due care when the accident happened.” . . . “It it impossible” (says the court) “to tell from the evidence how the intestate fell from the cars, what he was doing at the time, whether his death was instantaneous, or whether he endured any conscious suffering before his death. These questions are ieft to conjecture.” It was held that the trial court rightly directed a verdict for the defendant.
In the case of Riley v. Connecticut River Railroad Co., the facts were, that the deceased brakeman was last seen alive within about a quarter of mile southerly of the bridge, standing on a box-car in the regular discharge of his duties; that the rear of the box-car was next to a platform car; that he was next seen dead on the track about one hundred rods on the north side of the bridge. There was no blood on the track within about sixty rods north of the bridge,but from there to the body there was blood on the track. There was blood on the trucks of the platform car. The watch of deceased was found on the platform caí. The evidence showed that a person standing on the box-car would come in contact with the bridge at the time of passing. There was no warning signals, guards or “tell-tales,” main-
The general rule is stated by Earle, J". in the case of Cordell v. N. Y. Central & Hudson River R. R. Co., 75 N. Y. 332, as follows : “To maintain the action, the plaintiff must show that the death of the intestate was caused solely by the negligence of the defendant, and this must be shown by competent proof. It must not be left to mere speculation. When a person has been killed at a railroad crossing, and there are no witnesses of the accident, the circumstances must be such as to show that the deceased exercised proper care for his own safety. When the circumstances point just as much to the negligence of the deceased as to its absence, or point in neither direction, the plaintiff should be non-suited. The presumption that every person will take care of himself from regard to his own life and safety can not take the place of proof, because human experience shows that persons exposed to danger will frequently forego the ordinary precautions of safety.”
Other cases might be cited from different States, some of Avliich follow the rule as declared in the cases cited from Massachusetts and New York, and others that declared in the cases cited from Pennsylvania, Wisconsin and California. Many are collected and cited in the notes to the 4th volume of Amer. & Eng. Encyc., p. 76.
In this State the rule is firmly established, that contributory negligence is matter of defense; that it is incumbent on the defendant to plead it, and the burden rests on the defense to sustain the plea by proof, unless the evidence offered by the plaintiff in support of his case establishes contributory negligence on his part, in which event it can not be held that he has made out his own case. Contributory negligence being matter purely defensive under our decisions, it must follow that there are no presumptions against a plaintiff of a want of due care and diligence on his part, and that there is no burden on him to prove affirmatively that he exercised due care and diligence. The burden of proving contributory negligence resting on the defendant, it follows that where the proof shows injury, caused by the culpable negligence of the defendant, and the proof is wholly silent as to contributory negligence,
The general rule prevailing in this State in regard to giving the general affirmative charge is, that when the evidence is conflicting, or where different inferences can be reasonably drawn from the evidence, or where there is any evidence tending to establish the case of the other party, the general affirmative charge should never be given. — Payne v. Mathis, 92 Ala. 585; Bowden v. State, 91 Ala. 61; Railroad Co. v. Propst, 90 Ala. 1; Railroad Co. v. Smith, 90 Ala. 25. Applying these principles to the facts of the present case, were there any facts in evidence which tended to show that the hole in the top of the car was the cause of the death of plaintiff’s intestate ? The cars having separated, it became the duty of the brakeman immediately to set np brakes. He was last seen alive at the end of the car where the brakes were. The car was eight feet wide. On the top of the car, at the right-hand corner at the end where the brakes were, there was a hole three or four feet long, according to one witness, and three or four feet square according to another witness. If the extreme of the latter testimony be true, the hole extended to the middle of the car, and under the centre foot-board, upon which the brakeman was required to walk. The evidence tends to show that deceased, when first seen after his fall, was lying between the rails of the track, just after he was run over by these cars. The question presented is not, what the weight of the evidence establishes, or whether, if the conrt under the statute had tried the facts and found the issue for the defendant, the proof was sufficient to sustain the judgment of the court, but, as the facts were to be submitted to a jury, the real question is, under the principles of law we have declared, were there any facts and circumstances which tended to show that the defect in the top of the car caused him to fall, or would such an inference lie wholly in conjecture. The proper test as to whether the court shordd give the affirmative charge at last seems to be, would the court be justified in sustaining a demurrer to the evidence.
In the case of Allen v. Willard, 57 Penn. St. Rep., supra, it was evident that Allen came to his death by falling in the unexpected pit, and the question was one of care on his part. So, in the case of Strong, 62 Wis., supra, the proof
For the error in giving the general charge, the case must be reversed and remanded.