Central of Georgia Ry. Co. v. Robertson

• Decision Date: 27 October 1921
• Docket Number: 5 Div. 780.
• Citation: 91 So. 470,206 Ala. 578
• Parties: CENTRAL OF GEORGIA RAILWAY CO. v. ROBERTSON.
• Court: Alabama Supreme Court

91 So. 470

206 Ala. 578

CENTRAL OF GEORGIA RAILWAY CO. v. ROBERTSON.

5 Div. 780.

Supreme Court of Alabama

October 27, 1921

Appeal from Circuit Court, Lee County; S. L. Brewer, Judge.

Action by J. P. Robertson against the Central of Georgia Railway Company, for damages for injuries suffered while a passenger. Judgment for the plaintiff; defendant appeals. Affirmed on condition plaintiff file remittitur of damages as required by the court. The facts on which opinion is rested sufficiently appear therefrom.

Barnes & Walker, of Opelika, for appellant.

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

MILLER J.

J. P Robertson, the plaintiff, was injured while a passenger on the train of defendant, the Central of Georgia Railway Company. He was going from Opelika to Birmingham on December 20, 1916; his fare had been paid, his ticket collected by the conductor, and he was occupying a proper place prepared for passengers. When this train, known as No. 9 Seminole Limited running 40 to 45 miles an hour, reached a little trestle near Gold Ridge, Lee county, Ala., there was a jar, and several coaches turned over. The one occupied by plaintiff rolled down an embankment, and landed bottom upward. He was thereby injured, from which he suffered physically and mentally.

The plaintiff does not sue for punitive damages for wanton injury, but for compensatory damages in several counts for his injuries, including physical and mental suffering-in their nature permanent-caused by the alleged negligence of defendant or its agent or servants while acting in the line and scope of their employment.

When it is shown by evidence that a passenger is injured in an accident on a railroad train by a derailment of the coach in which he is riding, a prima facie presumption will arise that the accident was due to the negligence of the company or its servants. Ala. G. S. R. Co. v. Hill, 93 Ala. 514, 9 So. 722, 30 Am. St. Rep. 65.

The undisputed evidence discloses to the jury in this case that the plaintiff was a passenger on the train of the defendant the coach in which he was riding was derailed, and that he was injured thereby. This made out a prima facie case for the plaintiff, and shifted the burden of proof on to the defendant. Ala. G. S. R. Co. v. Hill, 93 Ala. 514, 9 So. 722, 30 Am. St. Rep. 65. To overcome this prima facie presumption from that evidence of plaintiff, the defendant must reasonably satisfy the jury by testimony "that the derailment [of the car] was not due to any negligence, and could not have been prevented by the exercise of the highest degree of care, skill, and diligence on the part of the carrier." Ala G. S. R. Co. v. Hill, 93 Ala. 514, 9 So. 722, 30 Am. St. Rep. 65; M. & E. Ry. Co. v. Mallette, 92 Ala. 209, 9 So. 363.

The defendant defended the case on the theory, and with evidence tending to show, that neither the defendant nor its servants or agents were guilty of any negligence; that it used the highest degree of care and skill in constructing, maintaining, and inspecting its roads and trains; that it was guilty of no negligence in the machinery and appliances used in its railroad; that its servants were careful, diligent, and skillful persons in such business; that the derailment was caused by a transverse fissure, a latent defect, in a rail of the track, "that science and art have discovered no means of detecting"; and that this rail was purchased from a competent and reliable manufacturer.

J. F. Bonner and C. E. Weaver were witnesses for defendant. Bonner was track supervisor of defendant since 1906, and Weaver was engineer of maintenance of way. Both went to the wreck, and each testified as to what they saw and to the appearances of everything. They testified that this rail was broken in eight pieces, and that other rails were bent and dislocated. The defendant asked J. F. Bonner, its witness, this question:

"Mr. Bonner, from your experience and observation as track supervisor and your examination of the situation and surroundings there at the wreck, what, in your judgment, caused the train to leave the track?"

This question was asked C. E. Warren by defendant:

"I will ask you again, what, in your judgment, Mr. Warren, caused that rail to break?"

The court sustained the objection of plaintiff to each of these questions. Each question called for an answer that invaded the province of the jury. Each called for a conclusion, not facts. What caused the wreck and what caused the rail to break were conclusions to be determined by the jury from the facts and circumstances detailed by the witnesses to them. On these matters the witnesses should narrate the evidence, and the jury give the opinion by their verdict on the testimony. The court did not err in sustaining the objections to these questions. Montgomery & E. R. Co. v. Mallette, 92 Ala. 209, 9 So. 363; Lawrence v. Kaul Lbr. Co., 171 Ala. 300, 55 So. 111; L. & N. R. Co. v. Fleming, 194 Ala. 51, 69 So. 125; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48, 22 Corpus Juris, p. 502, § 597, subsec. 3.

W. S. Burkes, witness for plaintiff, on rebuttal, testified that-

He was a section foreman; had been working in the railroad business for 38 years, and as section foreman for 32 years. "I have had experience and observation of what I have heard called transverse fissures. When I found them I called them pipes, cracks, or breaks; that's what they call transverse fissures in a rail. *** I have seen a few, some 10 or 12 of these so-called transverse fissures, since I have been in the railroad business."

The court permitted plaintiff to ask this witness this question, over objection of defendant:

"I will ask you whether or not they were discovered in the rail before the break, or whether they could be discovered in the rail before the break by surface inspection?"

The witness answered:

"If it came to the surface you can see it. It will roll over or spread out or wash down."

The court refused motion of defendant to exclude the answer. From the evidence the witness had sufficient knowledge of and actual acquaintance in his business with transverse fissures to give testimony to the jury on the subject. Some witnesses for defendant on direct and on rebuttal examination testified that the rail that was broken contained transverse fissures in it, shown at the broken place, and gave description of these and the nature of them, in general, and how they could be seen; and that if they reached the surface they were too small to be visible. So, it was competent and relevant for the plaintiff by this witness to show how they can be discovered and their appearance, as he had sufficient personal experience with and actual knowledge of them to testify.

The general affirmative charge as to each count and to the complaint as a whole was asked by the defendant, by separate charges, each in writing, and each was refused by the court.

Has the defendant established by the evidence, clear and uncontradicted, with the inferences or deductions therefrom undisputed-

"that the derailment [of the car] was not due to any negligence, and could not have been prevented by the exercise of the highest degree of care, skill and diligence on the part of the [defendant]?"

This must be done to overcome the presumption of law and fact from the evidence of plaintiff to entitle defendant to said charges. Cent. of Ga. R. Co. v. Robertson, 203 Ala. 358, 83 So. 102.

In this case on former appeal (203 Ala. 358, 83 So. 102), this court wrote:

"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."

What is the proper degree of care and diligence to be used to...