Louisville & N.R. Co. v. Coulton

• Decision Date: 07 February 1889
• Citation: 86 Ala. 129,5 So. 458
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. COULTON.

5 So. 458

86 Ala. 129

LOUISVILLE & N. R. CO. v. COULTON.

Supreme Court of Alabama

February 7, 1889

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by J. E. Coulton against the Louisville & Nashville Railroad Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals.

Hewitt, Walker & Porter, for appellant.

L C. Dickey, J. F. Gillespie, and James Weatherley, for appellee.

STONE C.J.

The present suit was brought under the act "to define the liabilities of the employers of workmen," approved February 12, 1885, (Sess. Acts, 115; Code 1886, § 2590 et seq.) The plaintiff was serving the defendant corporation in the capacity of brakeman on one of its trains and complains that while performing his duty, and in obedience to a proper signal therefor, "in attempting to apply one of the brakes on said train, as it was his duty to do, by reason of the weak and defective condition of said brake, and of the appliances thereto belonging, he was violently thrown down upon or against one of the cars, or upon or against some portion thereof, and severely bruised hurt, and damaged; that the injury thus sustained *** was caused by the negligence of defendant in failing to provide good and safe brakes, and appliances connected and used therewith, and by the defendant negligently and carelessly omitting to keep its brakes on said train in good repair, and knowingly allowing the same to remain out of repair." Plaintiff then averred that he did not know that said brake and appliances were defective, or out of repair, until he suffered the injury. Defendant below (appellant here) contended in the court below, and renews the contention here, that inasmuch as the plaintiff averred that the defendant "knowingly" suffered the brake and appliances to remain out of repair, he thereby took upon himself the burden of proving that the corporation had knowledge of the imperfection. In other words, that, having stated his alleged grievances with unnecessary particularity, his proof, to authorize recovery, must make out his cause of action, as he has chosen to allege it. Smith v. Causey, 28 Ala. 655; Railroad Co. v. Johnston, 79 Ala. 436; Railroad Co. v. Arnold, 80 Ala. 600, 2 South. Rep. 337; 1 Greenl. Ev. § 57 et seq.; Railroad Co. v. Dickson, 88 Ill. 431.

The statutory ground of recovery relied on in this case is that the injury was caused by reason of some "defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the master or employer." It is, however, further provided that no recovery can be had under this clause, except in one of the following conditions First, "unless the defect therein mentioned arose from *** the negligence of the master 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;" or, second, that such defect "had not been discovered or [and] remedied, owing to the negligence of the master or employer, or of some person in the service of the master or employer, and in-trusted by him with the duty," etc. There was no demurrer to the complaint, and hence we need not consider its...