Louisville & N.R. Co. v. Pearson

Decision Date04 January 1893
Citation12 So. 176,97 Ala. 211
PartiesLOUISVILLE & N.R. CO. v. PEARSON.
CourtAlabama Supreme Court

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action on the case by B. S. Pearson, as administrator of one Charles Creecy, against the Louisville & Nashville Railroad Company to recover damages for the death of plaintiff's intestate while in the employment of defendant railroad company, in the capacity of a brakeman. From a verdict and judgment for plaintiff in the sum of $5,000, defendant appeals. Reversed.

The complaint, as amended, averred that the injuries resulting in the death of the said Creecy "were caused or brought about by the negligence of the defendant company, in using and operating an old, dilapidated car or gondola; that the handhold or handholds on said car were in a worn or defective condition; that, as plaintiff's intestate attempted to ascend said car to put on brakes, the handhold of the same gave way, producing the injuries aforesaid to plaintiff's intestate; and plaintiff avers that said injuries were caused by reason of the defect in the condition of the ways, works machinery, or plant connected with or used in the business of the defendant company, and said defect arose from, or had not been discovered, owing to the negligence of the defendant or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition; and plaintiff avers that, had his intestate recovered from said injuries, he could have maintained an action in his own right against said defendant company for the same, hence this suit." The defendant demurred to the amended complaint on the ground that the facts averred therein did not show a violation of duty which the defendant owed plaintiff's intestate. The court overruled this demurrer, and defendant duly excepted. Issue was then joined on the pleas of the general issue and of contributory negligence.

The testimony for the plaintiff tended to show that he was a brakeman in the employment of the defendant, and that the accident which resulted in the death of his intestate occurred while he was attempting to ascend a car of the defendant for the purpose of putting on brakes. The plaintiff's intestate had been ordered by the conductor to switch the car which caused the accident. In obedience to this order, the engineer made use of what was known as a "kicking" switch. That plaintiff's intestate after having put on brakes on one car, which was left on one of the tracks of the defendant railroad line, ran diagonally across to catch the flat car, and, while attempting to ascend by means of the ladder at the side of the car, the handhold thereon gave way, and precipitated him to the ground, and he received injuries which resulted in his death in a short time. The facts and circumstances which surround the declarations of the plaintiff's intestate a few moments after the car had run over him, and while the wheels of the car were resting on his body, are sufficiently stated in the opinion. Upon the examination of one Rosser, and after he had testified that he had been in the railroad business since the year 1861, the plaintiff then asked him the following question: "Whether or not it is necessary, in order to properly discharge the duties incumbent on brakemen or flagmen, for such employes as that to get on and off moving trains." The defendant objected to this question, and duly excepted to the court's overruling his objection. The witness answered that it was a part of his duty, and the defendant duly excepted to the court's overruling his motion to exclude this answer from the jury. The plaintiff then asked this witness the following question: "Whether or not it is the custom among well-regulated railroads to make kicking switches." The defendant objected to this question, and duly excepted to the court's overruling his objection. The witness answered, "It is universal with all railroads that I ever railroaded on." The plaintiff further offered to read in evidence to the jury the following rule from the rule book which had been identified as the rule book of the defendant, and which rule was numbered 153 "Conductors must see that the brakes are set on cars that they leave on sidings. When the siding is on a grade, they must couple together all cars standing on it, and, in addition to setting the brakes, the wheels should be blocked, to prevent the cars from moving." The defendant objected to the introduction of this rule, and duly excepted to the court's overruling his objection. The plaintiff then offered in evidence, against the objection and exception of the defendant, a shoe which was identified by the wife of the deceased as having been worn by the deceased on the day of the accident. In testifying about the circumstances of the accident, several of the witness testified, against the objection and exception of the the defendant, that the end of the handhold which gave way with the plaintiff's intestate was rusty, and that there was no tap on the end of it.

The testimony for the defendant tended to show that the accident occurred on account of the contributory negligence of the plaintiff's intestate; that when he reached the car he was at the end furthest from the one on which the handhold which gave way was located; that he could have gotten upon the car at this end, and in doing so would have avoided the accident. This testimony was rebutted by testimony in behalf of the plaintiff tending to show that the car was loaded with iron ore at the time; that the brake was located at the end of the car at which the plaintiff's intestate ascended, and that the ladder was on the side next to plaintiff's intestate, and that, under these circumstances, it was more convenient for the intestate to run to the end of the car opposite to that at which he reached the car. The defendant separately excepted to the several portions of the court's oral charge, and also excepted to the court's refusal to give 25 charges requested by it, but it is not deemed necessary under the opinion to set these charges out in detail.

Hewitt, Walker & Porter, for appellant.

M. W. Whitaker, for appellee.

COLEMAN J.

The complaint, as amended, presented a good cause of action, and the demurrer to it was properly overruled. Declarations of plaintiff's intestate were admitted in evidence against the objection of the defendant. The admission of this evidence is assigned as error. It is claimed that these declarations were properly admitted as a part of the res gestæ. There is evidence tending to show that as plaintiff's intestate attempted to ascend to the top of a moving car the "handhold" by which he endeavored to pull himself up gave way, and he was precipitated in front of the car, and was run over and crushed. The negligence charged as the cause of the injury was the defective condition of the "handhold." When the car came to a standstill, the wheel of the car was on the body of deceased. The evidence of the witness Lum Edwards shows that he, the witness, was but a few yards off; that deceased called to him to "come and help him;" that he ran up to deceased, and that while the wheel was on the body of deceased, the witness exclaimed "Mr. Creecy, what in the world!" and deceased said, "That handhold let me down." The evidence tends to show that the car was moved off the body about or a little less time than five minutes after the car stopped. Jesse Williams testified that after the car was rolled off the body, in reply to a question as to how it occurred, plaintiff's intestate said, "The handhold let me down." Charley Roberts' testimony is to the same effect. Bob Patterson testifies that he was 75 or 100 yards off, when the car ran over deceased: "That he got there about five minutes after the car got on him;" that while the car was on him deceased said, "The handhold let me down." This statement of the declarations was admitted as res gestæ suffices for a consideration of the question as to whether they constituted a part of the res gestæ of the accident, and, as such, admissible in evidence. In Gandy v. Humphries, 35 Ala. 624, the principle is thus declared: "When it is said that declarations, to be admissible as a part of the res gestæ, must be contemporaneous with the principal transaction, it is not meant that they shall be exactly coincident in point of time with the main fact. If they appear to spring out of the transaction, if they serve to elucidate it, and are made so shortly after the happening of the main fact as to stand in the relation of unpremeditated result to it, the idea of deliberate design in making them being fairly precluded by the surrounding circumstances, then they may be regarded as contemporaneous." In the case of Railroad Co. v. Hawk, 72 Ala. 112, the same principle is declared, and it is added: "The evidence offered must not have the earmarks of a device or afterthought, nor be merely narrative of a transaction which is really and substantially past. *** The time-'a few minutes'-does not appear to be so proximate to the main transaction, nor are the declarations made otherwise so closely connected with it as an elucidating...

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