E.E. Jackson Lumber Co. v. Cunningham

• Decision Date: 21 July 1904
• Parties: E. E. JACKSON LUMBER CO. v. CUNNINGHAM.
• Court: Alabama Supreme Court

37 So. 445

141 Ala. 206

E. E. JACKSON LUMBER CO. v. CUNNINGHAM.

Supreme Court of Alabama

July 21, 1904

Appeal from Circuit Court, Chilton County; N. D. Denson, Judge.

Action by Lola Cunningham, as administratrix of the estate of Norman Cunningham, deceased, against the E. E, Jackson Lumber Company, to recover damages for the wrongful killing of plaintiff's intestate. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The complaint, as originally filed, contained four counts. During the trial of the case, and after the introduction of all the evidence, the plaintiff amended her complaint by striking out the first, third, and fourth counts of the complaint. The substance of the second count of the complaint, as amended on which the trial was had, is sufficiently stated in the opinion. To this second count, as amended, the defendant demurred, assigning various grounds, which may be summed up as follows: (1) Said count does not show any negligence on the part of the defendant, its agent, servant, or employé (2) said count does not show what constituted the defect in the ways, works, machinery, or plant used in, or connected with, the business of defendant; (3) said count does not point out the defect in said railway at or near the point of said derailment; (4) said count does not show that the defect complained of was the proximate cause of the death of plaintiff's intestate. This demurrer was overruled. The defendant pleaded the general issue and several special pleas, in which was set up contributory negligence on the part of plaintiff's intestate, and also that the plaintiff's intestate assumed the risk incident to his running the engine over the track of the railroad company at the point where the derailment of the engine occurred. Issue was joined upon these pleas.

On the trial of the case it was shown that the defendant was engaged in the lumber business and was operating a sawmill; that, in connection with such lumber and sawmill business, the defendant owned and operated a railroad, upon which were run locomotives and cars; that, at the time of the accident which resulted in the death of plaintiff's intestate plaintiff's intestate was in the employment of the defendant as an engineer upon one of its locomotives, which was being run upon the track of defendant's railway; that the said intestate had been so employed for a number of months, and had been running as engineer upon the particular engine for several months; that on the day of the accident the plaintiff was running said engine along the railroad track owned by the defendant, and there were attached to said engine a number of cars; that as said engine was moving along said track, and as it came to a certain designated stock gap along said railroad track, said engine became derailed, and turned over upon the plaintiff's intestate and crushed him to death. The plaintiff's testimony tended to show that, at the stock gap where the derailment of the engine occurred, the track of the defendant was in a defective condition; that the rails were too light to sustain an engine of the weight of the locomotive upon which the plaintiff's intestate was riding; that some of the cross-ties at said place were rotten; and that the derailment of the engine was caused by the lightness of the rails and the rotten condition of the cross-ties at said place. The evidence for the defendant tended to show that the track of the defendant was in good condition and in good repair; that at the stock gap in question along that part of the said railroad track, the cross-ties were not rotten, but were in good condition; and that the roadbed was in good condition. The section foreman who had superintendence and supervision over the part of the railroad track where the accident occurred testified that he inspected said roadbed and track on Saturday preceding said accident, which occurred on Monday, and that said roadbed was in good condition, and said track in thorough repair. During the examination of some of the witnesses for the plaintiff, and after they had testified to an examination of the track of the defendant's railroad at the stock gap upon the day of the accident, the said witnesses were allowed, against the objection and exception of the defendant, to testify to the condition of the rails and timbers of the roadbed of said railroad at said stock gap, and for a short distance on either side of said stock gap, as they appeared shortly after said accident, and also to said track having been repaired after said accident and to have found partly decayed stringers and cross-ties at and near the place of derailment, which stringers and cross-ties appeared to have been taken from said stock gap and the railroad immediately adjacent thereto. During the examination of one Thomas Meroney, he testified that he was in the employ of the defendant as an engineer on the date that plaintiff's intestate was injured, but was operating a different engine; that he had been an engineer for a number of years, and had had a great deal of experience during that time, not only in reference to locomotive engines, but also as to the construction of railroad tracks, having been also a section foreman for a short time. Thereupon the plaintiff asked said witness what, in his judgment, was the weight of the engine upon which the plaintiff's intestate was riding when the accident occurred. The defendant objected to this question upon the grounds that it called for irrevelant, illegal, and immaterial evidence, and because the witness was not shown to be an expert as to such matters, and was not shown to have been sufficiently familiar with the weight of said engine to answer. The court overruled the objection, and the defendant duly excepted. The witness answered that, in his...