Northern Alabama Railroad v. Shea, 142 Ala. 119

Northern Alabama Railroad v. Shea

142 Ala. 119 | Ala. | 1904

MCCLELLAN, C.' J.'

We read the fifth count to aver that the train of cars upon which plaintiff was in discharge of his duties as a brakeman was derailed, and plaintiff thereby injured, in consequence of its being run by the engineer in charge at a rate of speed which was reckless, that is, negligent and unregardful of consequences, and dangerous. This is a sufficient averment of negligence under the decisions of this court. It is much the same as an averment that the engineer so negligently run his engine as to cause the derailment and injury to plaintiff. — Louisville & Nashville Railroad Company v. York Admrx., 128 Ala. 305, 309.

The averment of the 6th count that the defect in defendant’s track -which caused the injury “arose from or had not been discovered or remedied owing to the defendant’s negligence, or the negligence of some person in the service of the defendant and entrusted by the defendant with the duty of seeing that said track was in proper condition,” etc., is a necessary averment under the statute, is well made substantially in the language of the statute, and is sufficient, as has been expressly held, without avering the name of the person so entrusted. Whether the defect arose from defendant’s personal negligence or of a person “entrusted” in that behalf, and if the latter, his name, are facts best known, in the nature of things, to the defendant; and the averment as here made is not only sufficient, in all cases, but in many it is the only averment that can be made. — Columbus & Western Ry. Co. v. Bradford, 86 Ala. 574, 579, 580; Woodward Iron Co. v. Herndon, Admr., 114 Ala. 191, 215.

The 8th count was not open to the objections taken by the demurrer. It sufficiently charges damnifying negligence on the part of the defendant’s engineer in the management of his engine, (Railroad Co. v. York, supra), — and it in effect avers the surname of the engineer and that his Christian name is unknown to plaintiff. It was not necessary for plaintiff to aver that he had made diligent effort to ascertain the engineer’s full name but had failed to ascertain it.

*127The witness Stewart was shown to be skilled and experienced in respect of track construction and track conditions. He was competent to give the opinions elicited from him to the effect that the track at the point of the derailment was in a defective and unsafe condition.

So with the witness Shea in respect of the speed of the train at the moment of derailment: He had long experience as a brakeman. His duties had to do with the regulation of the speed of the train under the varying circumstances of curve, grade and the like incident to a line of railway. He knew what was understood to be a safe rate of speed down the grade and around the curve at the point of this derailment. His experience especially qualified him to judge the speed of this train at that point. He ivas entitled as an expert to give his opinion on each of these matters, and to further state it as his opinion that the train, at the time and place in question, was running at a dangerously high speed, or, in other words, that the rate which he said ij; was going, about twenty miles an hour, was a dangerous rate of speed. • •

Each count of the complaint was supported by tendencies of the evidence, which made a case under each for the determination of the jury; and these tendencies were sufficiently strong in support of one or more of the counts as to render it impossible for us to affirm that the circuit court erred in overruling defendant’s motion for a new trial in so far as that motion was rested on the ground that the verdict was contrary to or not sustained by the evidence. Nor can we affirm that the court erred in its conclusion that the verdict was not excessive in amount. Hence, our conclusion that the court properly refused to give the affirmative charge requested by the defendant upon the whole case and upon each count, and that the court did not err in overruling the motion for a new trial.

The case made by the evidence under the 6th count is essentially different from that of Davis v. Miller, 109 Ala. 589. There the overwhelming weight of evidence showed that the cause of the derailment was the presence of Miller’s body under the cars, and not any defect in the *128track. . Indeed, the evidence greatly preponderated to show that there was no defect. Here there is abundant evidence of a flagrantly defective condition of the track at the point of the derailment. But it is said that the evidence shows that these defects did not cause the derailment, for that it appeared beyond dispute that a wheel of one of the cars mounted a rail short of the point where the cars left the track and smashed it all to pieces, and that the defects shown in the evidence — rotten cross ties all along there, old, worn and inadequate rails, etc., etc., — could not have possibly caused the wheel to mount the rail, but tended only to cause the rails to spread away from each other, the effect of which would have been obviously to let the wheels down on the ties between the rails, etc., etc. The fault of this position lies in its assumption that the mounting of a rail by a wheel of one of the cars was the beginning of the trouble and the cause of the derailment. This does not necessarily follow at all. Non constat, but this was itself caused by the derailment of cars in front of this one, or front wheels of this car. There was ample reason on the evidence for ibe jury to so find, to conclude that other cars in front of this, or wheels in front of this, left the track in consequence of its defective condition, and caused this wheel to mount the rail — that, in other words, this mounting of the rail was a consequence and not the cause of the derailment. Indeed that is the most reasonable conclusion open to the jury on the evidence. The fact that other trains passed safely over this track a short time before this occurrence did not preclude such finding by the jury: It may well be that these very ■ preceding trains so aggravated the defective condition of the track as to render it incapable of bearing the weight and motion of the cars which were thrown off. Nor does the fact that the engine of this train, heavier than the cars, passed safely on this occasion demonstrate that the cars were not derailed in consequence of a defective track. It may well be that cars in a train, especially on a defective track, running down a steep grade around a curve, would have imparted to them a swaying, latteral, jerky motion more likely to spread a track or break light rails *129attached to insecure — rotten—ties than would be the more regular and direct motion of the heavier engine.

One averment of the 6th count descriptive of the alleged defective condition of the track is that the rails were “insecurely fastened to the cross ties.” . It is insisted for appellant that there is no proof of this averment. We cannot concur in this view. The evidence was overwhelming that the ties were rotten. The jurors’ common knowledge was sufficient to afford them necessary assurance that rotten wood will not -hold a rail or spike, and to justify their finding that the rails were not securely spiked to this rotten wood.

There was evidence by the engineer himself that the proper speed coming down this grade and around this curve was eight or ten miles an hour. There was other evidence that he brought his train down there on this occasion at a speed of from fifteen to twenty miles an hour, and that this was an "improper and dangerous speed. This was clearly sufficient to justify a finding on the part of the jury that he was guilty of .negligence in the management and running of his engine.

On the question of plaintiff’s alleged contributory negligence, the utmost that can be said is that there was some evidence tending to show that he was not duly diligent in putting on the brakes of which he had charge as the train ran down this grade, leaving it an issue for the jury under the 5th and 8th counts whether he was negligent in that respect, and, if so, whether such negligence contributed to this injury.

Trainmen do not assume the risks of defective track conditions. They have a right to assume that the track is safe. It is not their duty but the duty of other employes to keep it in proper condition. The acquaintance which trainmen are required to have with the premises, and to acquire which they are carried over the road on trains before being put in charge of trains, is more an acquaintance with the line, so- to say, than with the track. They must know, and, in the way indicated, they are taught the conditions of the line in the respect of stations, stopping places, switches, sidings, grades, curves and distances. With these things they have to do; but *130not with the track itself in respect of its condition and maintenance. This plaintiff, a brakeman, was not charged with knowledge of the defects in this track, but, to the contrary, had a right to assume without investigation that the track was in good and safe condition. Charge 2i ivas, therefore, properly refused. — Ga. Pac. Ry. Co. v. Davis, 92 Ala. 300, 308, 309; K. C. M. & B. R. R. Co. v. Webb, 97 Ala. 157.

Charge 26 was also properly refused. We follow the example of appellant’s counsel in pretermitting discussion of it.

Affirmed.

Tyson, Simpson and Anderson, J.J., concurring.