Louisville & N.R. Co. v. Tegnor

• Decision Date: 08 February 1900
• Citation: 125 Ala. 593,28 So. 510
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. TEGNOR.

28 So. 510

125 Ala. 593

LOUISVILLE & N. R. CO. v. TEGNOR.

Supreme Court of Alabama

February 8, 1900

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by Margaret J. Tegnor, as executrix, against the Louisville &amp Nashville Railroad Company. From a judgment on a verdict for plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee, Margaret J. Tegnor, as executrix of William F. Tegnor, deceased, against the Louisville & Nashville Railroad Company, seeking to recover $30,000 damages for the alleged negligent killing of the defendant's testator. The complaint contained eight counts. The trial court having given the general affirmative charge in favor of the defendant as to the first, second, and sixth counts, it is unnecessary to refer to them. The averments of the remaining counts of the complaint are sufficiently stated in the opinion. The evidence showed that on the 3d day of August, 1898, plaintiff's testator was a passenger on defendant's passenger train, having paid his fare, and that when the train reached a point near McAdory Switch,between Brookwood and Birmingham, several of the cars were derailed, and plaintiff's testator received injuries from which he died the next day. There was evidence tending to show that at and near the point of derailment the cross-ties were rotten; some of the plaintiff's witnesses saying that half of them were rotten, and others that a third of them were rotten. Plaintiff's evidence also tended to show that some of the rails were worn as much as half an inch, and that this would make the rail dangerous; that these conditions had existed for weeks; and that the section gang was along there almost daily. The testimony tended to show further that, after the cars turned over, many of the cross-ties were crushed and mashed all to pieces, and that one of the rails was spread out and twisted around; and that after the accident the defendant had the old ties taken out and had them replaced with new ties all along the curve where the accident occurred. The plaintiff's testimony further tended to show that many of the spikes on the track, and many of the braces put there to hold the rails down, had become loose and broken; some of the spikes working up from their sockets, and many of the braces having the eyelets broken out, through which the spikes were driven to hold them firm and steady. The plaintiff's testimony further tended to show that some days before the accident the attention of the section boss (one Howard Escoe) had been called to the defective conditions named above, and that, although it was his duty to remedy the defects, he had not done so. The testimony of the defendant's witnesses shows that the track at the point where the wreck occurred was in good condition; that the cross-ties were sound, the track at this point having been repaired about 10 days before the accident the old ties having been taken out and removed and new ones put in; that the track was properly surfaced and gauged; and that it was constructed and maintained in the same manner as other well regulated and equipped railroads constructed and maintained their tracks. It further appeared that trains passed over the tracks the day before and on the day of the wreck, and to those on the train, whose duty it was to observe the track, it appeared all right. Upon the cross-examination of the plaintiff, Margaret J. Tegnor, and after she had testified that W. F. Tegnor was her husband she was asked the following separate questions: "How old was Mr. Tegnor?" "Hadn't Mr. Tegnor been afflicted for years with a chronic disease?" "Hadn't Mr. Tegnor's mind been affected for years before his death to such an extent that he was unfit for the transaction of any and all business?" "What was his earning power at the time of his death,-prior to the time of his death?" "What was he contributing from his earning to the support and maintenance of his wife and those who were dependent upon him, if any?" "Did he, or not, at the time of his death, have any occupation?" The plaintiff separately objected to each of these questions upon the ground that they called for immaterial and irrelevant evidence. The court sustained the separate objections to each of the questions, and to each of these rulings the defendant separately objected. Upon the examination of one J. C. Duffey as a witness for the defendant, he testified that at the time of the accident he was section foreman of the section of the defendant's road in which the derailment resulting in the death of the plaintiff's testator occurred, but that he had taken charge of the section only a few minutes before the accident; that he had, however, examined the section, and the part of the road where the accident occurred, prior to his taking charge as section foreman; that he had found the rails in good condition, and that they were but little worn,-not enough to injure them; and that there was nothing in the condition of the track that would have a tendency to cause the cars to get off of the track. Upon the cross-examination of this witness, he testified that the inside of the outside rail at the place of the accident was worn but very little,-in some places it may have been worn 1/8 of an inch; that the worn condition of the rail was in small places, while in other places the rail was not worn at all. Thereupon, during his questions: "That would have been a pretty bad track, if it had been worn one-half an inch in some places, wouldn't it? (The defendant objected to this question upon the ground that there was no evidence that the rail was worn that much, and because the question calls for irrelevant, incompetent, and immaterial evidence. Plaintiff's counsel stated that he proposed to prove that the rail was worn one-half an inch, and the court allowed the question to be answered.) A. Yes, sir. Q. Make it dangerous, wouldn't it? (The defendant objected to this question because it called for irrelevant, and incompetent, and immaterial evidence, and because it was not a proper subject for expert testimony. The court overruled the defendant's objection, and the defendant excepted.) A. Yes, sir." The evidence pertaining to the other rulings of the trial court upon the evidence which are presented for review on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant separately requested the court to give the general affirmative charge in its behalf upon the third, fourth, fifth, seventh, and eighth counts of the complaint. The court refused to give each of these charges, and to each refusal the defendant separately excepted. There were verdict and judgment in favor of the plaintiff, assessing her damages at $7,500. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Thos. G. Jones, Chas. P. Jones, and Alex. C. Birch, for appellant.

Lane & White, for appellee.

TYSON J.

The complaint contained eight counts, but upon three of them the court gave the affirmative charge for the defendant. The gravamen of the complaint in each of the remaining counts was the alleged death of the plaintiff's intestate, who was a passenger upon one of the defendant's passenger trains caused by...