Kansas City, M. & B.R. Co. v. Webb

• Decision Date: 25 November 1892
• Citation: 97 Ala. 157,11 So. 888
• Court: Alabama Supreme Court
• Parties: KANSAS CITY, M. & B. R. CO. v. WEBB.

11 So. 888

97 Ala. 157

KANSAS CITY, M. & B. R. CO. v. WEBB.

Supreme Court of Alabama

November 25, 1892

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Action by Powhatan E. Webb against the Kansas City, Memphis &amp Birmingham Railroad Company for injuries received by plaintiff while in defendant's employ. From a judgment for plaintiff, defendant appeals. Affirmed.

The first six charges requested by the defendant, and to the refusal to give each of which by the court the defendant separately excepted were general charges in favor of the defendant on the first, second, third, fourth, fifth, sixth and eighth counts of the complaint. The defendant also requested the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(7) That it is the duty of the jury to weigh the testimony of railroad witnesses in the same manner as they would other witnesses in other employments under like circumstances. (8) If the evidence leaves the jury in doubt and uncertainty as to whether the engine left the track at the point where the split rail was spiked against the main rail, or at some other point, they must find for defendant. (9) The only negligence for which the defendant is liable under the evidence in this case, is the negligence of the section foreman, if he has been shown to have been negligent. (10) The defendant, under the evidence in this case, is not liable for the negligence of its road master, James McNamee if he is shown to have been negligent. (11) Unless the jury believe from the evidence that the derailment of plaintiff's engine was caused by the split rail of the switch leading to the abandoned mine being separated from the main rail, and that the plaintiff did not by his own negligence contribute to the derailment of his engine, they must find for defendant. (12) If the jury believe that the engine on which plaintiff was riding got off the track at any other point on defendant's track than where the split rail was spiked against the main rail, they must find for defendant. (13) That if the jury believe the evidence in this case, the branch road upon which plaintiff was injured was properly constructed by defendant. (14) That it is the duty of the jury to reconcile conflicting testimony of witnesses, if they can; but, if they cannot reconcile the testimony, then they must say, if they can determine, who has told the truth; and, if they cannot say who has told the truth, then they must find the facts, so far as there is conflict, not proven in the case; and, if such facts are necessary to be proven in order for plaintiff to recover, they must find for defendant."

Hewitt, Walker & Porter and Wallace Pratt, for appellant.

Lane & White, for appellee.

STONE C.J.

This action was brought under section 2590 of the Code of 1886, and the complaint, as originally filed, contained eight counts. The jury were instructed to find for the defendant on the fifth and seventh counts, and we are therefore relieved of the consideration of any questions that could arise under them. The defendant filed demurrers to the fourth and sixth counts, but, inasmuch as the record fails to show any ruling on those demurrers, we cannot consider their sufficiency. 3 Brick. Dig. p. 705, § 82; Id. p. 405, § 13; Id. p. 78, § 7; Powell v. State, 89 Ala. 172, 8 South. Rep. 109. We do not, however, discover any defects in these counts. Railway Co. v. Davis, 92 Ala. 300, 9 South. Rep. 252. The plaintiff was a locomotive engineer, having charge of a freight train running on defendant's road. His run took in a spur track, which connected the main line with a coal pit, and his train was engaged in hauling coal from the pit to Birmingham. In December, 1889, while drawing a train of cars loaded with coal over the spur track, the locomotive and some of the cars were derailed, and plaintiff received the injury for which he seeks to recover damages in this action. His contention is that defects in the track of the railway caused the derailment and the injury. The defense attempted was that plaintiff was driving his engine at too great speed on a curve, and in that way caused the derailment by his own wrongful act. He was running on no schedule which prescribed his rate of speed.

We hold that each of the six counts on which, under the charge of the court, the plaintiff could claim a recovery, was based substantially on subdivision 1 of section 2590 of the Code. Each complains of a "defect in the condition of the ways" or track of the railroad as the cause of the injury. Count No. 1 avers that the "engine was derailed and thrown from said track by the negligent failure of the defendant to have and maintain said track in proper and safe condition," and that this condition "arose from, and had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the employment of defendant, and intrusted by it with the duty of seeing that said track was in a safe and proper condition." This count does not aver in what the defect consisted, nor does it charge that any particular person, agent, or employe of the railroad company was guilty of the negligence which caused the way or track to be out of repair. Each of the other counts complains of the defect and want of repair of the track as the cause of the derailment and injury. They differ from the first in specifying, in varying forms and in differing degrees of particularity, the defects in the ways complained of, and in naming the agents through whose negligence those defects had been permitted to remain unremedied.

The defects complained of, and attempted to be established by plaintiff, were- First. That a switch on the track, which had been placed on the outer line of a curve, had been discontinued, but not removed. This switch was placed on the spur track for the purpose of connecting another spur track, which formerly forked off from it, but which had been discontinued. The split rail used in switching, it was contended, had been permitted to remain, had been insecurely fastened, had become loose, and was out of line with the succeeding rail; that this had continued for a considerable time, and that both the section master and division supervisor had negligently permitted it to remain out of repair. Second. That in constructing the curve, which was on a scale of 14 degrees, the outer rail was not sufficiently raised above the inner to insure the safety of a moving train passing over it. There was testimony tending to show the truth of each of these charges, and that the attention of the section master had been called to the insecurity of the discontinued switch some weeks before the derailment. Plaintiff's testimony tended to show that the engine left the track at the point of the discontinued switch, and at the misfit of the switch rail to the one next following. He testified that when his engine left the track he was moving at the rate of not exceeding 8 or 10 miles an hour. The defendant's contention was that each of these complaints was untrue in fact, and its testimony tended to prove the truth of this contention. It claimed that the curve was properly constructed, the outer rail sufficiently elevated, the place of the discontinued switch made entirely secure, and that in fact the engine did not leave the track until it had passed the switch some 70 feet. It contended, and made proof in support of the contention, that at the time of the run-off the train was moving at the rate of 15 or 20 miles an hour, that this speed was too high on a curve of 14 degrees, and that this caused the derailment. We have presented the material issues of fact, as the testimony developed them.

As we have said, no issues of law raised on the pleadings, even if ruled on in the circuit court, are presented for our consideration. It follows that, if the substance of the cause of action set forth in the counts of the complaint be proved to the extent they are so proved plaintiff was entitled to a verdict. This is the rule even when a complaint which is demurrable is taken issue upon. Mudge v. Treat, 57 Ala. 1; Irion v. Lewis, 56 Ala. 190; Allison v. Little, 93 Ala. 150, 9 South. Rep. 388, and authorities cited. The derailment in this case certainly had a cause. It may have been a defect...