52 So. 827 | Ala. | 1910
Counts 1, 2, and 6, were those upon which the trial was had. They ascribe the injury to defects in the condition of the ways, works, machinery, or plant of the defendant. In their order they aver that the defect existed in the drawhead, the coupling link, and the coupling pin of a car — hot-pot—about which plaintiff was engaged when injured. While there was evidence that the link was defective, there was no evidence of negligence in failure of the defendant, or of others, to whom that duty was committed, to discover or remedy that defective condition of the link, or that it arose from negligence for which defendant was accountable. Proof to that end is essential to a recovery under such a count. — L. & N. R. R. Co. v. Lowe, 158 Ala. 391, 48 South. 99; L. & N. R. R. Co. v. Davis, 91 Ala. 487, 8 South. 552; Tuck v. L. & N. R. R. Co., 98 Ala. 152, 12 South. 168; L. & W. R. R. Co. v. Binion, 98 Ala. 574, 14 South. 619; Birmingham, etc., Co. v. Rockhold, 143 Ala. 126, 42 South. 96—among others.
There was no tendency even of the evidence from which it could be inferred that the injury complained of resulted from any other source than the defective link, thus leaving the counts ascribing the injury to defects in the drawhead and pin without any support in the evidence. Accordingly the general affirmative charge on the whole case, requested by the defendant, should have been given. Its refusal was error.
Reversed and remanded.
