Louisville & N.R. Co. v. Woods

• Citation: 105 Ala. 561,17 So. 41
• Parties: LOUISVILLE & N. R. CO. v. WOODS.
• Decision Date: 31 January 1895
• Court: Supreme Court of Alabama

17 So. 41

105 Ala. 561

LOUISVILLE & N. R. CO. v. WOODS.

Supreme Court of Alabama

January 31, 1895

Appeal from circuit court, Morgan county; H. C. Speake, Judge

Action by Cicero Woods against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

The complaint, as originally filed, contained but one count, in which, after averring that the plaintiff was a brakeman on a freight train being run by the defendant over its road, and while in the discharge of his duties as such brakeman he was thrown from one of the cars to the ground, and suffered great bodily injury, alleged that the injury was suffered "one account of the negligence of the defendant's agents servants, or employés, who were fellow servants upon said train with the plaintiff, in failing to put on the brakes upon the cars of said train, and checking the motion of said train to a speed of safety, while said train was running over a reverse curve on said road, at a great rate of speed, and said train was jerked by the rapid movements of the engine attached to said train, which caused plaintiff to be thrown off said train." The plaintiff also averred in this count that he was confined to his bed for a great length of time, and suffered great anguish of body and mind. To the original complaint the defendant filed, on May 13, 1893, its demurrer, and assigned as ground thereof that the complaint shows upon its face that there was no liability on the defendant for the injury alleged, in that it was assigned to the negligence of the fellow servants of the plaintiff. On June 22, 1893, the plaintiff amended his complaint by adding a second count thereto, in which he averred that the injury complained of "was caused by reason of the negligence of the engineer employed by the defendant, and who had charge and control of the engine moving the train, which said negligence consisted in this: That said engineer negligently and carelessly permitted said train to attain a great rate of speed in descending the grade hereinbefore referred to whereby said train and the car upon which the defendant was going to set up a brake was jerked along said reverse curve so violently and rapidly as to throw the plaintiff from said train." The plaintiff also averred in this second count that, by reason of the injury suffered, he was confined to his bed for a great length of time, and suffered great pain in body and mind. On November 9, 1893, the defendant moved the court to strike from the files the second count of the complaint, which was filed on June 22, 1893, on the ground that it was a departure from the cause of action as contained in the original complaint. On November 17, 1893, the defendant demurred to the amended complaint, and assigned as grounds therefor: "(1) That it is not alleged in said complaint the rate of speed at which said train was descending the grade; (2) it is not alleged that the rate of speed at which said train was descending the grade was a negligent rate of speed; (3) because the anguish of mind is not an element of damages in this cause." On the same day, November 9, 1893, the defendant, "for answer to the amended complaint in this cause, filed June 22, 1893, says (1) That it is not guilty of the matters and things therein alleged; (2) that the plaintiff was himself guilty of negligence which produced the injuries complained of; (3) the matters and things complained of in said amended complaint are barred by the statute of limitations of one year." On November 18, 1893, the plaintiff amended his complaint by adding a third count thereto, in which he alleged that while a brakeman on one of defendant's freight trains, and while the said train was going down a steep grade, at a high rate of speed, "which the engineer in charge of the train, and an employé of the defendant, negligently allowed said train to assume, the plaintiff was, by a sudden jerk and lurch of said train, caused by the negligence of the engineer, hurled violently from the rapidly moving train, and thrown against the ground with great force," whereby the injuries complained of were inflicted. The judgment entry showing the rulings of the court upon the pleadings, is copied in the opinion.

The plaintiff, as a witness in his own behalf, testified that while he was in the employ of the defendant as a brakeman, he went on one of its freight trains, and while said train was going between Cullman and Decatur, just after it passed Holmes' Gap, it began to descend a very heavy grade; that the speed attained by the train down this grade was 45 miles an hour; and that while going down the grade, just as the train was on a reversed curve, there was a sudden jerk, which threw him from the train, and caused the injuries complained of. He further testified that he was thrown from the train just as he was going across a coal car loaded with coal to set up a brake. The plaintiff was thrown from the train about a mile and one-quarter or a mile and one-half from Holmes' Gap. While examined as a witness, the plaintiff was asked this question: "What was the rate of speed at the time you left Holmes' Gap, starting down the mountain?" The defendant objected to this question, because it was immaterial, and Holmes' Gap was not the place where the accident happened. The court overruled the objection, and the defendant excepted. Upon the witness answering, "I suppose it was running 20 miles an hour," the defendant moved the court to exclude this statement from the jury, and duly excepted to the court's overruling its motion. Upon the introduction of one H. B. Scott, as a witness for the plaintiff, he testified that he was a life insurance agent, and had had a great deal of experience in life insurance business, and was well acquainted with the standard mortuary tables in use by first-class life insurance companies. This witness further testified that "the life expectancy of a man 21 years of age [the age of the plaintiff at the time he was injured], in good health, is 41 1/2 years." The defendant objected to this testimony, on the ground that it was irrelevant, and, upon the court overruling his objection, he duly excepted thereto. The testimony for the defendant, which was given by the engineer, fireman, and conductor, who were on the train from which the plaintiff was thrown, tended to show that, at the time the plaintiff was thrown from the train, the train was not going at a greater rate of speed than 20 miles an hour; that it was down grade, and it was running of its own momentum (the engineer testifying that he had his engine under perfect control); that the train did not give a jerk, sudden or otherwise, as it went down the grade from Holmes' Gap. The conductor and engineer both testified that they instructed the plaintiff not to cross over the cars for the purpose of setting up the brakes, but to remain upon the cars next to the engine, where the brakes of two cars faced each other, and that there was no necessity for the defendant to have crossed over the loaded coal car, from which he was thrown. The train was composed of 13 cars, some of them loaded and the others not loaded.

The court, at the request of the plaintiff, gave the following written charges to the jury: (1) "If the fall of plaintiff from the car was accidental, and the accident was caused by the negligence of the engineer in allowing the train to attain a dangerous rate of speed, and by causing the train to give a sudden jerk or lurch, by which the plaintiff was hurled from the train and hurt, without negligence on his part, defendant is liable." (2) "If you believe that the train gave a jerk or a lurch, and that this was caused by the engineer negligently permitting the train to run at a dangerous speed, and that by said jerk or lurch the plaintiff was thrown off and injured, without negligence on his part contributing to his injury, you must find for the plaintiff." (3) "If the jerk or lurch complained of was caused by a dangerous speed acquired by the train, and if this dangerous speed, if any there was, came about through the negligence of the engineer in control of the engine, and further, that if from such jerk or lurch the plaintiff was hurt without negligence on his part, your verdict should be for the plaintiff." The defendant separately excepted to the court giving each of these charges, and also separately excepted to the court's refusal to give each of the following charges...