Louisville & Nashville Railroad v. Jones
83 Ala. 376
Ala.
1887
Check Treatment
STONE, C. J.

The complaint in this case contains two counts. The gravamen of the first is, that the defendant negligently permitted a Avheel of the trucks attached’ to the coach in which the plaintiff’s intestate was being carried as a passenger, to become and remain loose, by which said coach was thrown from the track, injuring her, and causing her death. The second does not specify any particular omission of duty. Its' averments are, that “the defendant did not use due and proper care or skill in and about the carrying of the said Bebecca Jones on the said journey, but so negligently and unskillfully conducted itself in that behalf, and in conducting, managing and directing the coach in which said Bebecca Jones was such passenger,.....and the engine whereby the said train was drawn upon and along the said railway, that the coach which contained the said Bebecca Jones was thrown and cast with great violence from and off the rails of the said railway,” &c. There was no demurrer to either count, but issue was taken upon them.

Two well-defined principles of law bear on the questions arising on the pleadings, and also must be kept in mind when we come to treat of the charges refused: First, in stating or averring matters which are, in their nature, more within the knowledge of the defendant than the plaintiff, less particularity is required. Second, if injury is suffered at the hands of a common.carrier, the law, in the absence of all explanation, presumes it was the result of the carrier’s fault, and casts on the latter the burden of overturning the presumption, or of showing that diligence and a careful observance of duty could not have prevented the injury, Stephen’s Pl. 328, 329; S. & N. R. R. Co. v. Bees, 82 Ala. 340; Leach v. Bush, 57 Ala. 145.

“Skill” and “care,” in and about the carrying of a passenger on a railway, are not confined to the mere competency and watchfulness of the officers in charge of the train; nor are these qualifications the only factors which enter into the inquiry, whether or not the carrier conducted itself negligently or unskillfully in the particular service. The track, locomotive machinery, or the rolling-stock may be unskill*382fully or negligently constructed, or may be negligently permitted to remain out of repair. If a railway corporation, in either of the conditions named, carry a passenger, and he suffer injury from defective structure, or failure to make proper repairs, this is negligence, or unskillful conduct on the part of the corporation, and gives a right of action. And the defect of structure, or want of repairs, being much better understood by the corporation, or person operating the road, than by the person who suffers the injury, it need not be averred with more .particularity than is found in the second count in this ease.—Leach v. Bush, 57 Ala. 145; E. T., Va. & Ga. R. R. Co. v. Carloss, 77 Ala. 443; Phœnix Ins. Co. v. Moog, 78 Ala. 284.

Lest we be misunderstood, we will repeat here what we have heretofore said. Railroads are not required to adopt every new invention. It is sufficient if they conform to such machinery and appliances as are in ordinary use by well-regulated railroad companies. — L. & N. R. R. Co. v. Allen, 78 Ala. 494; Ga. Pac. Railway Co. v. Propst, at present term.

Another principle of law bears on some of the rulings of the Circuit Court. Even if Mrs. Jones had pneumonia, or incipient pneumonia, at the time she received the injury, and it could be known that she would ultimately die of that disease; this would not necessarily, and as a matter of law, relieve the railroad of all responsibility. If the injury was caused by the negligence- of the railroad company, under the rules declared above, and if it contributed and hastened her death, then the corporation would not be guiltless. — Tidwell v. State, 70 Ala. 33; Whar. Hom., § 382. This would be so in criminal prosecutions, and must be at least equally so in a civil suit, such as this. In such case, the wrong and injury are, in fact, the cause of the death.

The charge given at the instance of the plaintiff is free from error.

If the plaintiff’s intestate had pneumonia at the time she was injured, and died of it, it does not follow that the injury was not the real cause of her death, in this, that it so impaired her strength and vital force as to render the disease incurable, when, without the injury, it would have yielded to treatment. Nor, in such case, is there any presumption that the disease alone caused her death, rather than that the disease, augmented and accelerated by the injury, produced the result. These were questions for testimony, for argu*383ment, and. for deliberation by tbe jury; but no legal presumption arises, either one way or the other, out of the facts hypothesized in the first. charge ashed by the defendant. The Circuit Court did not err in refusing this charge. The second charge is faulty, because its tendency would have been to withdraw from the minds of the jury all aggravating or accelerating effect the injury might have produced. Moreover, it is in substance an argument, and well calculated to mislead. It was rightly refused.

The third charge is, to some extent, subject to the same criticism as that we have indulged in reference to the second. If the hypothesis of its second clause had been, “that her death was solely the result of bad health,” it would only have asserted the true doctrine in reference to the testimony before the jury.

The principles we have declared above, when considering the complaint, show that the court rightly refused to give the fourth charge.

The fifth and sixth charges raise the same question. To authorize a recovery in a civil suit, it is not necessary to establish the right beyond doubt. Such preponderance of testimony as produces reasonable conviction is enough. These charges were rightly refused. — 3 Brick. Dig. 434, §§ 409 to 414; Adams v. Thornton, 78 Ala. 489; Phœnix Ins. Co. v. Moog, 81 Ala. 335. There are authorities which hold, that when testimony is in equipoise, the finding must be against the party on whom the burden of proof rests. Lindsey v. Perry, 1 Ala. 203; Vandeventer v. Ford, 60 Ala. 610; Wilcox v. Henderson, 64 Ala. 535, These charges do not raise that question.

In Life Association of America v. Neville, 72 Ala. 517-521, is this expression: “While we fully recognize the principle, that whenever the evidence in a cause leaves a disputed fact in doubt and uncertainty, the issue must be found against the party upon whom the burden of proof rests.” It was not intended in that case to declare that a mere doubt is enough to defeat a recovery in a civil suit. This disputed fact, to be within the principle declared, must not only be in doubt; it must be left in uncertainty. Certainty, in the law, has many intents, varying in degree. The concluding part of the sentence shows there was no intention to overturn or weaken the long-recognized rule, as to the measure of proof in civil suits. Its language is, that “courts and juries should Father weigh than count the testimony of witnesses, and a *384decree or verdict should never be found by them on a mere preponderance, which fails to produce a proper conviction, or satisfaction in their minds.” That was a chancery case, and the duty rested on the court, not on a jury, to weigh the testimony.

We find no error in the record.

Affirmed.