Central of Georgia R. Co. v. Robertson

Decision Date26 June 1919
Docket Number5 Div. 723
Citation203 Ala. 358,83 So. 102
PartiesCENTRAL OF GEORGIA R. CO. v. ROBERTSON.
CourtAlabama Supreme Court

Rehearing Denied Oct. 23, 1919

Appeal from Circuit Court, Lee County; Lum Duke, Judge.

Action by J.P. Robertson against the Central of Georgia Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Barnes & Walker, of Opelika, for appellant.

J Reese Murray and Erle Pettus, both of Birmingham, for appellee.

MAYFIELD J.

The action is by a passenger against a common carrier to recover damages for personal injuries alleged to have been received in consequence of the carrier's negligence, or the negligence of the carrier's agents or servants acting within the line and scope of their authority. The evidence without dispute showed the relation of passenger and carrier and the alleged injury during the existence of the relation.

The evidence also showed without dispute that the injury was due to the derailment and overturning of the coach during transit in which the plaintiff was being carried.

There was much evidence to show the cause of the derailment of the train, most of it being to show that the wreck was due to a defective rail, and that the defect was a latent or hidden one not open to discovery or detection by the best, most prudent and careful inspection and test known to the profession of railroading, or those employed in manufacturing or dealing in steel rails. Most of the evidence went to show that the defect was a "transverse fissure," and that such was a latent defect, and could not be discovered by any known test.

The evidence rebutted any cause of the derailment other than the broken rail. Not in every case of injury to a passenger does a presumption of negligence on the part of the carrier arise from the happening of the injury. In Georgia Pac. R. Co v. Love, 91 Ala. 432, 8 So. 714, 24 Am.St.Rep. 927, this court, limiting the application of certain expressions used in Louisville & N.R. Co. v. Jones, 83 Ala. 376, 3 So. 902, said, quoting the language of the Supreme Court of Missouri in Dougherty v. Missouri R. Co., 81 Mo. 325, 51 Am.Rep. 239, that--

"Where the vehicle or conveyance is shown to be under the control or management of the carrier or his servants, 'and the accident is such as, under an ordinary course of things, does not happen if those who have the management use proper care,' it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care."

It is sometimes stated that the fact that a passenger is injured on a carrier's train raises the presumption of negligence, and casts upon it the burden of showing that it was not guilty of negligence. But it is evident that there are cases in which that broad statement cannot be made, for example, a case in which the plaintiff's evidence shows his injury to have resulted probably from some unavoidable cause--some cause outside the ordinary supervision and control of the carrier. Cent. of Ga. R.R. Co. v. Brown, 165 Ala. 495, 496, 51 So. 565.

Mr. Hutchinson thus states the rule and cases to which the presumption of negligence arises, and this rule has been repeatedly followed by this court as to several instances stated by Mr. Hutchinson:

"Where it is shown that an accident happened upon a railway, from which a passenger sustained an injury, by the breaking down or the overturning of the vehicle, or by a derailment of the train or of some of the cars, or by a collision between two trains or between two cars, or by an unusual jerk or jolt of the train, or by the parting of the train, or by the breaking down of a bridge, or by the falling of some of the appliances within the vehicle, or by an obstruction, which the carrier has placed too near the track, striking the side of the train, a prima facie presumption will arise that the accident was due to the negligence of the company or its servants. So where it is shown that the injury was caused by a spark from one of the company's locomotives, or by a block of coal which was thrown from the tender of an engine while it was passing the depot platform, or by the explosion of a locomotive boiler, the law will presume from the mere happening of the injury that the company was guilty of negligence."

See Hill's Case, 93 Ala. 514, 9 So. 722, 30 Am.St.Rep. 65; Jones' Case, 83 Ala. 376, 3 So. 902; Mallette's Case, 92 Ala. 209, 9 So. 363.

The law holds common carriers of passengers to the highest degree of care and diligence which is known to careful, diligent, and skillful persons engaged in such business. When the passenger during the relation is injured by the car in which he is being carried being derailed, wrecked, etc., or occurrence which would not happen without some negligence on the part of the carrier, this raises the presumption, prima facie only, however, that the injury was proximately caused by the negligence of the carrier, which presumption will authorize a recovery of damages against the carrier for the injuries suffered by the passenger, unless the carrier can rebut this prima facie presumption by reasonably satisfying the jury that the derailment or other occurrence causing the injury could not have been prevented by the exercise of the highest degree of care on the part of the carrier, his agents or servants.

There are cases in which the doctrine of res ipsa loquitur appears. The circumstances in such cases are said to speak the negligence of the carrier. If, however, it is shown that the derailment or other occurrence causing the injury to the passenger was an inevitable accident, as the defect causing the wreck or derailment was a hidden or latent one that could not have been discovered or provided against though the highest degree of care and prudence had been exercised; that the carrier rebuts the prima facie presumption, and acquits himself of actionable negligence--it is often a difficult question to determine whether or not a plaintiff is entitled to the benefit of the presumption offered by this doctrine, though the proof shows a case within the influence of the rule. This is often so rendered difficult by the form of the pleadings, whether the allegation embraces such evidence. If the negligence be sufficiently charged in general terms only, then of course it will include cases within the doctrine res ipsa loquitur; but if it charges negligence in general terms, and then specifies particular acts, it may be doubtful whether the plaintiff is limited to proof and the right to recover to the particular acts so specified. See note to 24 L.R.A. 788, and 51 Am.St.Rep. 555, and cases cited.

The first count alleges negligence in the most general terms, as follows:

"And the plaintiff avers that his said wounds, injuries, and damage were the proximate consequence, and caused by reason of the negligence of the defendants, their servants or agents as aforesaid."

The other counts were more specific, but somewhat general; the negligence being thus described:

"That the defendants' servants or agents, while acting within the line and scope of their employment, so negligently conducted themselves in and about the business of carrying the plaintiff as such passenger as aforesaid that the plaintiff received the wounds, injuries, and damage set out in the first count of the complaint."

Either allegation is sufficient to avail of the prima facie presumption of negligence, or to be within the doctrine of res ipsa loquitur. The real troublesome question is as to whether or not the defendant's evidence showed without dispute that it was guilty of no actionable negligence proximately contributing to the injury. In other words, did it show that the accident was an inevitable one, or such that the highest degree of care and foresight could not have prevented or provided against? If so, it was not liable as a matter of law. If not so shown without dispute, then it was a question for the jury, and the trial court properly declined to take the question from the jury. There is no material conflict in the evidence. If true, was it sufficient to rebut the prima facie presumption of negligence?

Carriers are not absolute insurers of the safety of their passengers. They are, however, bound to use the utmost care, so far as human skill and foresight can go to secure their safety, and to prevent possible accidents which may arise from the condition of its roadbed, machinery of all kinds, and all other acts of negligence on the part of the carriers themselves, their agents or servants. This duty extends to safe and properly constructed bridges, trestles, culverts, ties, rails, and properly and safely spiking them to the cross-ties. Carriers now use dangerous agencies such as steam, electricity, etc.; hence the law enjoins upon them the utmost skill and care as to original construction, selection, maintenance, and operation of their agencies. Mere lack of knowledge of defects will not excuse the carrier unless he has exercised the proper degree of care and diligence to discover and prevent the defect. An appliance or machinery not obviously dangerous, which has been in constant use and uniformly proved safe, may be construed without imputation of negligence, where proper care and diligence has been used as to inspection.

Carriers are under the highest duty to provide and maintain suitable and safe equipments and appliances; their safety should be established by the very best and surest tests recognized by experts in the business, and nothing can exempt him from liability as for defects therein, except that they are latent ones which no reasonable degree of skill and diligence would discover or prevent. Because accidents like the one in question are almost certainly fatal and dangerous to human life,...

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