East Tennessee, V. & G. Ry. Co. v. Thompson

• Decision Date: 26 November 1891
• Citation: 10 So. 280,94 Ala. 636
• Parties: EAST TENNESSEE, V. & G. RY. CO. v. THOMPSON.
• Court: Alabama Supreme Court

10 So. 280

94 Ala. 636

EAST TENNESSEE, V. & G. RY. CO. v. THOMPSON.

Supreme Court of Alabama

November 26, 1891

Appeal from circuit court, Shelby county; LE ROY F. BOX, Judge.

Action by Mary Thompson, administratrix, against the East Tennessee Virginia & Georgia Railway Company to recover damages for the alleged negligent killing of plaintiff's husband. The witness Robinson, mentioned in the opinion, was the conductor of the train on which deceased was at work when the accident occurred. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

The court, at plaintiff's request, gave the following charge "If a person standing on a moving freight-car should be struck by a supply-pipe and knocked from the car, while the tendency would be for the man to fall near the pipe, yet you are to consider other natural laws, such as the forward motion of the body of the man on the train if the train was in motion, and all other natural laws that may enter in and control the motion of the man's body after he was so struck." The following written charges, requested by defendant, were refused: "If the jury believe from the evidence that the pipe to the tank had stood as it was for a number of years, this is a circumstance at which the jury may look in determining whether or not that pipe was safe, if they believe, further, that trains had passed by each day and no one had been theretofore injured by said pipe." "(9) If the jury believe the evidence, they ought not to find a verdict for the plaintiff." "(13) If the jury believe the evidence, they must find for the defendant. (14) The supply-pipe of a water-tank is not a part of the ways, works, machinery, or plant of a railroad company." "(k) If the jury believe from the evidence that the supply-pipe to the water-tank had been in the same position for a number of years, and trains had passed there each day during all the time, and no one had been injured at that point, this is a circumstance tending to show that the construction of said pipe was not dangerous." "( z) The fact, if it be a fact, that the supply-pipe to the water-tank at Montevallo, in the same relative position to the defendant's railroad track in which it was at the time said Anderson Thompson was killed, has been safely used for a number of years, is a circumstance at which the jury may look in determining whether or not the negligence of Anderson Thompson contributed proximately to the death of the said Anderson Thompson." "( p) If the jury believe from the evidence that the supply-pipe to the tank had been in the same relative position as it was at the time Anderson Thompson was killed for a number of years, and freight trains had passed said pipe each day and night during all the said time, and no brakeman or other person had been injured before said time by said pipe, this is a circumstance at which the jury may look in determining whether or not the leaving of said pipe in said condition was negligence on the part of the defendant."

Pettus & Pettus, for appellant.

Linton A. Dean, for appellee.

CLOPTON J.

This action is brought by appellee, as administratrix of Anderson Thompson, under section 2591^[1] of the Code. The complaint, which is framed under the first subdivision of section 2590, ^[1] avers that plaintiff's intestate was, at the time he was killed, in the employment of defendant as brakeman, and that while in the discharge of his duties on the top of a car, attached to a running train, he was struck by a pipe projecting from a water-tank, knocked off, and caused to fall under the train, resulting in his death. The defect which caused his injury is alleged as follows: "That said pipe was projecting from said tank and overhanging defendant's road-bed in such a careless and dangerous position that a brakeman, standing on the top of a moving train, could not pass thereby without being knocked off." There can be no question that the supply-pipe of a water-tank is, in the meaning of the statute, a part of the ways, works, machinery, or plant connected with or used in the business of a railroad company; and if an employe is injured, without contributory negligence on his part, by reason of a defect therein, which arose from or was not discovered and remedied owing to the negligence of defendant or of some person intrusted with the duty of seeing that such ways, works, machinery, or plant were in proper condition, the company is answerable in damages. Railway Co. v. Brooks, 84 Ala. 138, 4 South. Rep. 289.

Among other pleas, the defendant filed two special pleas negativing the existence of the statutory facts which confer authority on courts of probate within their respective counties...