Wilson v. Louisville & N.R. Co.

• Decision Date: 18 July 1888
• Citation: 85 Ala. 269,4 So. 701
• Parties: WILSON v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

4 So. 701

85 Ala. 269

WILSON v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

July 18, 1888

Appeal from circuit court, Elmore county; JOHN MOORE, Judge.

Action for personal injuries, brought by John D. Wilson, against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals.

Brickell, Semple & Gunter, for appellant.

Jones & Falkner, for appellee.

CLOPTON J.

Appellant sues to recover damages for injuries suffered while engaged in the service of appellee as a brakeman on a freight train from having been struck by the supply-pipe of a water-tank while he was descending from the top of a caboose by means of an iron ladder attached to the side thereof. The gravamen of the action is that the defendant knowingly and negligently constructed the water-tank so as not to leave sufficient room between the pipe and the train for the body of a person to pass, which rendered it dangerous to employes, in the discharge of duty, while trains were passing. The injury of the plaintiff, and the circumstances under which it occurred, are not controverted. The case was tried on the issue of negligence of defendant in the construction of the tank, and of contributory negligence on the part of plaintiff. The court gave the affirmative charge in favor of the defendant. Generally, negligence is a mixed question of law and fact; and it is for the consideration of the jury when the evidence is conflicting, or only tends to prove the facts, or, if different minds may reasonably draw different inferences, though the facts are uncontroverted. The court should not take the question from the jury, unless the facts are undisputed, or conclusively proved, and the inferences indisputable, or unless the rule of duty is clearly defined, and is invariable, whatever may be the circumstances, or unless the court could properly sustain a demurrer to the evidence. Railroad Co. v. Jones, 71 Ala. 487; Railroad Co. v. Bayliss, 74 Ala. 150. The liability of defendant to answer in damages to the plaintiff, "when the injury is caused by reason of any defect in the ways, works, machinery, or plant connected with, or used in, the business of the master or employer," as provided by the first subdivision of section 2590 of Code of 1886, is qualified by the subsequent subdivision: "Nor is the master or employer liable under subdivision one, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to, the negligence of the master of employer, or some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition." Under the statute, negligence in causing, or failing to discover or remedy, a defect, is essential to liability. It does not undertake to define what shall constitute a defect, or negligence in regard to the condition of the ways, works, machinery, or plant. To determine these matters, reference must be made to the principles of the common law. Therefore, whether the plaintiff's right to recovery is based on the statutory or common-law liability of an employer, the measure of defendant's duty to plaintiff is essentially the same. We have heretofore considered in several cases the duty which railroad companies owe to their employes. A statement of the rules as settled will answer the purposes of this case. Unquestionably the law devolves the duty to use ordinary care and diligence, to furnish safe and suitable instrumentalities and appliances of the use of the employes in their business, and to keep the ways, works, machinery, and plant free from defects which are dangerous, so as not to expose their employes to unnecessary perils,-such care and diligence as men of ordinary care and prudence would exercise under like circumstances. But the company does not owe to employes the duty to adopt every new invention, though it may be deemed less dangerous by some persons who are regarded as skillful and experienced. The rule as declared is: "A railroad company's duty to its employes does not require it to...