Louisville & N.R. Co. v. Campbell

• Decision Date: 24 November 1892
• Citation: 12 So. 574,97 Ala. 147
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. CAMPBELL.

12 So. 574

97 Ala. 147

LOUISVILLE & N. R. CO. v. CAMPBELL.

Supreme Court of Alabama

November 24, 1892

Appeal from circuit court, Montgomery county; John P. Hubbard Judge.

Action by T. J. Campbell against the Louisville & Nashville Railroad Company to recover damages for personal injuries alleged to have been sustained by plaintiff on account of the negligence of defendant. Judgment for plaintiff, and defendant appeals. Reversed.

Among the charges asked by the defendant, and to the refusal to give each of which by the court the defendant duly excepted were the following: (1) "If the jury believe the evidence, they must find for the defendant." (2) "If the jury believe from the evidence that the defect in the brake rod could not have been discovered by any ordinary inspection thereof, and if the jury find from the evidence that the injury to plaintiff was the result of the defect in said brake rod, then the jury must find for the defendant." (3) "It was not negligence on the part of defendant's inspector in failing to take to pieces the brake which was alleged to have been the cause of the accident." (4) "If the jury believe the evidence in this case, the defect in the brake rod which was the cause of the accident could not have been discovered by any ordinary method." (5) "It was not negligence on the part of the defendant or its agents in failing to discover the defect in the brake rod, which could not have been discovered by any ordinary inspection." (6) "It was not negligence on the part of the defendant or of its agents in failing to discover the defect in the brake rod, if it could not have been discovered by any of the usual or ordinary tests or inspections, as made by railroad companies generally." (9) "The defendant was under no duty to make any other inspection of said car or brake than was usual or customary on well-regulated railroads; and, if the jury believe such inspection was made, then they must find for the defendant." (10) "If the jury believe from the evidence that defendant's car inspector at Mobile, on March 2, 1891, exercised all the care, prudence, and caution in inspecting the car from which plaintiff fell that is ordinarily exercised by an ordinarily prudent, careful, or diligent man, then they must find for the defendant." (11) "The burden of proving negligence on the part of the defendant or its employes is upon the plaintiff; and unless the evidence satisfies the jury that a reasonably prudent and careful man in the ordinary affairs of life would have acted differently, under like circumstances, from defendant's inspector, then they must find for the defendant." (12) "If the defect in the brake rod could not have been discovered by any such inspection as is usual or customary by well-regulated railroads, then it is not negligence on the part of defendant or its agents in failing to discover the defect in the brake rod."

J. M Falkner, for appellant.

Chas. Wilkerson, for appellee.

HEAD J.

Appellee basing his action upon the statute, (Code 1886, § 2590,) sues the appellant to recover damages for personal injuries sustained. The complaint properly alleges facts essential to a recovery under that part of the statute on which it relies, which are (1) that he was in the employment of the appellant as a railroad brakeman; (2) that a brake on one of the cars in appellant's service was defective; (3) that while operating said brake, in the performance of the duties of his employment, he was injured by reason of the defect therein; and (4) that said defect arose from, or had not been discovered or remedied owing to, the negligence of appellant or some person in its service, and charged by it with the duty of seeing that the brake was in proper condition. In order to recover, it devolved on appellant to establish affirmatively, by evidence, each of these allegations. The first three are established without dispute, and there is no controversy about them. The issue really tried before the jury was upon the fourth allegation, and the question presented for review is whether the court, in refusing instructions requested by appellant, failed to properly submit to the jury the questions of negligence therein involved. The bill of exceptions contains all the evidence, and there is no material conflict whatever in it. It shows the following facts: On defendant's freight train running from Mobile to Montgomery, plaintiff, as his duty called, attempted to apply the brake on one of the cars, and, in the effort to do so, the brake rod broke in two, precipitating him to the ground, and causing him personal injury. The brake was attached to the car in the following manner: On the end of the car was a bar or plate of iron, one-half inch thick, and about four inches wide, rising over the end of the car. The brake rod passed through this bar or plate, and there was a ratchet wheel through which the rod also passed, which turned on top of the bar, and there was a dog by the side of the ratchet wheel which held that down. At the bottom or end of the brake rod, there was what is called a "stirrup," which the end of the rod passed through, and a key was then passed through the end of the brake rod which held it in place. The chain is fastened to the brake rod, sometimes close down to the stirrup, and sometimes four or five inches above it. The key which passes through the brake rod and holds it is called a "split key," made by bending a small piece of iron so as to bring the ends together. The key is put through the rod, and the ends are then pulled apart. By taking out this key the rod can be lifted up a short distance, until stopped by the chain reaching an obstruction above it. There is slight play in the rod when the key is in. Plaintiff testified that the split key could easily be removed, and the brake rod lifted up two or three inches. Shortly after the accident the broken rod was examined by several persons, who testified as witnesses on the trial, and their testimony is without contradiction that the rod broke at a point close to where it passed through the ratchet wheel, underneath that wheel, and between it and the bar or plate of iron on which the wheel rested. The broken ends of the two pieces of the rod were examined by the witnesses, and they testify as follows as to their appearance: R. W. Walker testified: "It looked as though there was an old break, or crack, rather, under the ratchet wheel, and between it and the plate or floor. The crack was on the brake stem or rod. The reason he thought it was an old crack, there was some rust on about half of the break." One Shields testified: "There was a new break of probably three fourths of the rod, and about one fourth seemed to be an old crack." George Morris testified: "There was an old crack in the rod. Part of the break was old and part new. The break was about half old and half new." One Scott testified: "It showed part new and part old break. A part of the surface of the brake rod was dark, and the other part bright, which indicated that the brake rod was partly...