130 Ala. 256 | Ala. | 1900
Damages are claimed for injuries received by the plaintiff while she was travelling from Decatur to Huntsville as a passenger on a train used by defendant for carrying passengers and freight. The car used for passengers was a caboose attached to the rear end of the train. The conductor provided for plaintiff in the rear of the caboose a chair, which in testifying she described as being narrower than an ordinary chair, without arms and having a low back and a hard wooden bottom. Plaintiff’s evidence tendsi to prove that while the train was being moved about a way station she was thrown from her seat and hurt by a violent jerk of the train.
The jury having been instructed affirmatively in favor of the defendant as to count 4 of the complaint it is presumed that no recovery was had thereon and, therefore, rulings on pleadings pertaining to that count are immaterial.
The laAv from public policy holds carriers of passengers to the highest degree of care to avoid injury to those
It is common knowledge that trains used exclusively for the carriage of freight have not appliances and furnishings so well adapted to graduating their movements as do passenger trains, and that jolt's and jars may be allowed to occur thereon which would be harmless to freight and yet be dangerous to passengers if passengers were being carried. It may also be a fact that such jolts are ordinarly incident to and are not inconsistent with prudent management of a train used exclusively for freight. Therefore, it cannot be assumed as a matter of law, that what would be prudent management of a freight train is a test of what would amount to prudence in the operation of mixed trains, employed for the carriage of both passengers and freight. Those taking passage on such trains assume no risk of conduct on the carrier’s part lacking in care for passengers, nor does the fact that the train is- composed mainly of freight cars lessen the degree of care resting on the carrier, and which requires of it everything which consistently with the -character and practical operation of such trains, is available for the passenger’s -safety. Elliott Kailroads, § 162!); I. & St. L. R. Co. v. Hart, 93 U. S. 291.
The fact that injury to a pa-ssenger has resulted from an act or omission of carrying by a railroad company raises a prima facie presumption of negligence on the part of the company and ca-sts on it the burden of disproving the presumption.
From the evidence in this case it appears that plaintiff’s fall may have been attributable to combined -causes, viz., a jolt of the train and insufficiency of the chair to support her against :su-ch jolt. It may be. that a -seat constructed to withstand and sustain its occupant against such jolts would have rendered them harmless. Whether in this instance the. defendant fulfilled its
In each of charges 11 and 14 refused to defendant it is wrongly assumed that the train in question was a freight train merely. Charge 14 is bad for further reason that it is argumentative in respect of the comparison it makes between passenger and freight trains and also because it is not common knowledge as is therein in effect asserted that there is always more or less of a jar or jerk incident to the starting and stopping of passenger train's. Neither of the other refused charges was in accordance with the principlesi above stated. Their defects will appear without special mention. There was no evidence from which contributory negligence could have been imputed to plaintiff.
Rulings on evidence so far as they are here complained of, involve no reversible error. After plaintiff had been caused by cross-examination to say the physicians who treated her were not attending the trial, it was permissible for her to explain the absence of those physicians, to rebut inferences that might have been drawn against her from the fact of such absence. The matter called for by the question “did you try to get him [Dr. Chapman] to come here” was not irrelevant, and the court will not be put in error for overruling the objection made, which being merely general, did not challenge the form of the question.
As part of the res gestae tending to illustrate the manner of plaintiff’s fall and injury, the testimony describing the ear’s construction and furnishings was properly admitted.
Payment by a party of expenses accruing on the attendance of a witness affords the witness a pecuniary
The only remaining question meriting special consideration is that raised by the motion for a new trial respecting the amount of damages assessed. The elements of damages in such cases are not such as to furnish any definite rule by which the jury can be guided in fixing the amount to be recovered. Here they included such suffering and physical impairment as had come or would probably ensue to the plaintiff as the proximate result of negligence averred and proven.
Evidence which was undisputed, tends to show that by her fall plaintiff sustained serious hurts, among which was a fracture of a bone in the hip joint in the treatment of which she was for several weeks kept prostrate with a weight suspended to her foot, and that this hip injury has resulted in impairment of plaintiff’s general health and a permanent stiffening and shortening ■of her leg to an extent which will hencef orth deprive her ■of its natural use. The jury was authorized to award for recovery a sum which would furnish reasonable compensation for these injuries and the suffering naturally •attendant thereon. The law committed the ascertainment of that sum to the jury’s discretion, and to the court the duty, in that regard, only of confining the exercise of that discretion to reasonably proper and practicable limits. In the record we do not find warrant for declaring that the trial court erred in determining those limits were not exceeded.
The judgment will be affirmed.
