Alabama G.S.R. Co. v. Bailey

• Decision Date: 30 April 1896
• Parties: ALABAMA G. S. R. CO. v. BAILEY.
• Court: Alabama Supreme Court

20 So. 313

112 Ala. 167

ALABAMA G. S. R. CO. v. BAILEY.

Supreme Court of Alabama

April 30, 1896

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Thomas F. Bailey against the Alabama Great Southern Railroad Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff defendant appeals. Affirmed.

The complaint, as originally filed, contained five counts. The court gave the general affirmative charge in favor of the defendant as to the second, third, fourth, and fifth counts. The issues were tried upon the first count, which, after averring that on September 22, 1893, the defendant was operating a railroad, and was having run on said railroad at said date a passenger train upon which the plaintiff was employed in the capacity of flagman or brakeman, continued as follows: "And on said day, while plaintiff was engaged in or about said service or business of defendant, on said train, the said train, or a part thereof, was derailed and wrecked at a point on said railway near Argo, and in consequence thereof plaintiff was injured in the back, spine hips, and other parts of the body, and was paralyzed and made sore and sick, and suffered and continues to suffer great mental and physical pain, and has lost and will continue to lose much time from his business, and was rendered permanently less able to work and earn money, and plaintiff's nervous system was shattered, and his health strength, and stamina permanently injured. Said train, or a part thereof, was derailed and wrecked, and plaintiff's said injuries and damages were caused, by reason of defects in the condition of the ways, works, machinery, or plant connected with or used in said business of defendant, which said defects arose from, or had not been discovered or remedied owing to, the negligence of defendant, or of some person in the service of defendant, and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition, viz. the track or roadway over and along which said train was running at the time of said derailment was defective at or near the point of derailment to wit, cross-ties in said track were rotten, rails were insecurely fastened, the track was not properly and sufficiently ballasted, rails were old and worn." Issue was joined on the plea of the general issue. The evidence for plaintiff tended to show that on the night of September 21 1893, a passenger train on the defendant's road, and upon which the plaintiff was a flagman, was wrecked; that said train was running at the rate of 50 miles or 60 miles an hour, and, when going around a curve which was on a down grade, the rails of the said curve spread or gave way, and caused the train to leave the track and be wrecked; that the said wreck was caused by rotten cross-ties being under the rails of said curve; that about one-half the cross-ties which were on said curve were rotten, and that the rails were not securely fastened thereon; that he was seriously, and permanently injured in his spine and other portions of his back, in such a way as to cause him great suffering; that for six weeks or two months after the accident he was unable to do any work whatever, and still suffers, from the injuries inflicted, at the time of the trial; that at the time of the accident he was 25 years of age, was in good health, and was earning $50 per month; that his family consisted of his wife and one child; and that it took all of his wages to support himself and family. The evidence for defendant tended to show that there were no rotten cross-ties in the curve of the railroad where the accident occurred; that the wreck was caused by some person or persons drawing the spikes which held the rails to the cross-ties, and taking the fish bars from the rails; and that the track was in good condition where the accident occurred, and was well ballasted. J. E. Pond, as a witness for plaintiff, testified that, on the curve where the wreck in question occurred, one-half of the cross-ties were rotten, and that they were in a very bad condition. Here plaintiff asked the witness this question: "Q. Tell what you have seen, if anything, with trains passing at the point where this wreck occurred. A. I have seen the ties fired, but I do not know whether it was immediately at that place. I will not say it was immediately at that place of the wreck, but I have seen a whole lot of rotten cross-ties fired there." Defendant objected to this question, and moved the court to exclude the answer to the same, because the plaintiff had not located the place where the ties caught fire at the point where the wreck occurred. The court sustained the motion, unless the plaintiff would show the location, whereupon the plaintiff's counsel then asked the following questions, which were answered as follows: "Q. Where were they? A. Near the wreck. I will not say it was where the wreck occurred. Q. There on that curve? A. Yes, sir; on that curve. Q. What is the length of the curve? A. I do not know that I could make a correct statement in regard to the length of that curve. Q. Is it a long or a short curve? A. Tolerably short,-a 100 or so yards. I cannot make an exact statement. I have never measured it. I have never paid any particular attention to the length of it." The defendant then moved the court to exclude the testimony of this witness as to the ties catching fire, because he had not located them at the point where the wreck occurred. The court overruled this objection, to which defendant excepted. The defendant introduced the deposition of one J.

B Mathews, who testified that he was on the train which was wrecked at the time of the plaintiff's injury; that after the train was derailed he remained about the track; that in examining the track he found the general condition of the track and roadbed good, except the broken joint in one of the rails at the place of the accident; that the roadbed was well ballasted, and its general condition was good; and that the rails and cross-ties were good. The fifth interrogatory was as follows: "Q. Did you, or not, observe any evidence of the railroad track having been tampered with? If you say you did, please give in detail, and plainly and exactly, what you saw. Was any one with you when you made the examination? If so, who was it? A. I observed evidences of the railroad track having been tampered with." Plaintiff objected to that part of the answer quoted, and the court sustained the objection, and suppressed it. Defendant excepted. This witness further testified as to his investigation and examination of the scene of the wreck, and that he had discovered certain indications of the track having been tampered with at this point. Upon the introduction of all the evidence the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe all the evidence in this case, they must find a verdict for the defendant." (2) "If the jury believe all of the evidence in this case, they must find a verdict for the defendant on the first count of the complaint." (7) "If the jury should...