| Ala. | Nov 15, 1904
Plaintiff’s intestate.was killed by the dei-ailment of a locomotive engine lie was running on a railway operated by the defendant while in defendant’s service as an engineer. The action is! under the employers’ liability statute (Cede, §§ 1749, 1751) and by the count constituting the amended complaint, the death is attributed to “a defect in the condition of the ways, works, machinery or plant used in or connected with the said business of defendant, which said defect arose from or had not been discovered or remedied, owing to the negligence of defendant or of some person in the service or employment of defendant and instructed by it with the duty of seeing that the said ways, works, machinery or plant Avere in proper condition, viz., the said railway from AAdiich the said engine Avas derailed as aforesaid at or near the point- of derailment was defective.” The count mentioned -Avas not subject to the objections taken by demurrer. The averment quoted was sufficient to give notice of the species of negligence relied on for recoArery and of the structure undertaken to be shoAvn defective. The term “railway” being used in the pleading merely to designate that from which the engine was derailed, must- in such use be construed as synonymous Avitli track, and this court has held in actions similar to this that a complaint alleging that the track of a railroad was defective is under our system of pleading sufficiently specific as to defects. — Ala. Gr. So. R. Co. v. Davis, 119 Ala. 573.
From the condition of the rails and timbers of the raihvay including the stock gap standing at the place of derailment as they appeared shortly after the accident, inferences might Avell have been drawn as to conditions existing at the túne of the accident. Plaintiff had, therefore, the right, to prove such subsequent condition, and for the purpose of identifying timbers found near the track and described by Avitnesses, as being partly de
Presumably the witness Meroney in tbe course: of bis experience as an engineer and section boss, bad acquired such knowledge of engines as together with bis personal observation of the engine derailed, qualified him to give, in testifying, bis estimate of tbe weight of that engine. “Tbe rule excluding opinions as evidence is not applied so strictly to questions of values and estimates as to many other subjects.” — Mobile etc. R. Co. v. Riley, 119 Ala. 260" court="Ala." date_filed="1898-07-01" href="https://app.midpage.ai/document/mobile-jackson--kansas-city-railroad-v-riley-6517692?utm_source=webapp" opinion_id="6517692">119 Ala. 260.
How frequently tbe road ought in the use of due care to have been inspected, was a question of fact dependent, it may be, on tbe character, of tbe material of which tbe road was composed and tbe use to which tbe same was subjected. Tbe court could not properly have charged as matter of law that defendant’s duty in that regard bad been discharged by an inspection bad on tbe Saturday next before the Monday of the accident as was assumed in refused charge 5 .
There was ím evidence to show such defect as may have existed, was open to ordinary observation or was brought to the intestate’s attention, nor wras there evidence that the intestate’s duties extended to track inspection. To him the defendant owed tbe duty of using due care to provide a track reasonably safe for thei running of trains and be, in tbe absence of knowledge to tbe contrary, was entitled to assume, and rely on tbe assumption, that this duty bad been performed. — Ga. Pac. R. Co. v. Davis, 92 Ala. 300" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/geo-pacific-railway-co-v-davis-6514263?utm_source=webapp" opinion_id="6514263">92 Ala. 300; L. & N. R. R. Co. v. Baker, 106 Ala, 624; L. & N. R. R. Co. v. Hawkins, 92 Ala. 241" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-hawkins-6514251?utm_source=webapp" opinion_id="6514251">92 Ala. 241. Tbe burden of proving tbe intestate knew of tbe defect causing the accident was on the defendant, and that be bad such knowledge wms not reasonably inferable from the mere fact that he bad been accustomed to run trains over the road. — Highland Ave. etc. R. Co. v. Miller,
The question of defendant’s negligence belonged with the jury. There was evidence from which it might have been found that- by reason of unsoundness of its timbers and the lightness of its rails the track at and near the stock gap was not sufficiently stable to carry an engine so. heavy as the one in use and that the defect arose from or had not been discovered or remedied owing to negligence chargeable to the defendant. It does not appear that the court erred in overruling the motion for a new trial o.r in any matter insisted on in briefs. Assignments of error not so insisted on are not here noticed.
Judgment affirmed.