Adams v. Crim

• Decision Date: 18 April 1912
• Citation: Adams v. Crim, 177 Ala. 279, 58 So. 442 (Ala. 1912)
• Parties: ADAMS v. CRIM.
• Court: Alabama Supreme Court

58 So. 442

177 Ala. 279

ADAMS v. CRIM.

Supreme Court of Alabama

April 18, 1912

Appeal from Shelby County Court; E. S. Lyman, Judge.

Action by A. J. Crim against J. B. Adams, doing business as the Longview Lime Works, for damages for personal injury.From a judgment for plaintiff, defendant appeals.Reversed and remanded.

The complaint charged that the plaintiff was in the employment of the defendant, and was riding upon a certain dinkey, or engine, in the discharge of his duty, when the engine became derailed, approximately causing the injury complained of.The negligence is alleged to be a defect in the ways, works etc., in that the track was defective and unsafe.

The following charges were given for the plaintiff: "(1)The court charges the jury that if they find their verdict for the plaintiff, they should give him such damages as will compensate him for all pain and anguish, both of mind and body, he may have suffered as a proximate result of his injuries in the wreck of the engine, as well as for all loss or impairment of his ability to earn a livelihood the balance of his life.(2)The court charges the jury that if they believe from the evidence that plaintiff's injury was caused from a defect in the track at or near the point of derailment, and that he did not know of the defect, and that said defect had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer intrusted by him with the duty of seeing that said road was in proper condition, and that the plaintiff did not contribute to his own injury, and that he was not a servant whose duty it was to remedy the defect, then the jury should find their verdict for the plaintiff."

The following charges were refused to the defendant: "(4) If the jury believe from the evidence that Crim was not engaged in the discharge of his duty of repairing the engine while riding upon the same at the time of the happening of the accident, their verdict must be for the defendant.(5) If the jury believe from the evidence that Crim was not engaged in repairing the engine when the accident happened, their verdict must be for the defendant."

J. T Stokely, of Birmingham, and McMillan & Haynes, of Columbiana for appellant.

Stallings & Drennen, of Birmingham, and J. Wiley Logan, of Columbiana for appellee.

ANDERSON J.

The plaintiff sought a recovery upon the theory that the "dinkey engine" upon which he was riding was derailed and injured him, and that the derailment was due to a defect in the track upon which said engine was running; the defendant's theory being that the derailment of said engine was not due to a defect in the track, but to the manner in which the engine was being operated, or some cause other than a defective track.There was therefore a conflict in the evidence as to whether or not the track was out of repair at or near the point of derailment, and, this being the case, the trial court erred in permitting the plaintiff to prove that the defendant repaired the track at this point shortly after the accident.Nash., Chat. R. R. v Ragan,167...