4 So. 701 (Ala. 1888), Wilson v. Louisville & N.R. Co.

Citation:4 So. 701, 85 Ala. 269
Opinion Judge:CLOPTON, J.
Attorney:Brickell, Semple & Gunter, for appellant. Jones & Falkner, for appellee.
Case Date:July 18, 1888
Court:Supreme Court of Alabama

Page 701

4 So. 701 (Ala. 1888)

85 Ala. 269




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.


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

Page 702

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...

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