Louisville & N.R. Co. v. Jones

Decision Date01 March 1888
Citation3 So. 902,83 Ala. 376
CourtAlabama Supreme Court

Appeal from circuit court, Jefferson county; LEROY F. BOX, Judge.

This is an action for damages, brought by Thomas F. Jones, as administrator of the estate of Rebecca Jones, deceased against the Louisville & Nashville Railroad Company, for the recovery of damages by the killing of the plaintiff's intestate. There were two counts in the complaint, as shown by the opinion, and issue was joined on the plea of the general issue. There was testimony, as shown by the bill of exceptions, tending to show that the plaintiff's intestate was a passenger on the defendant's road, when the coach in which she was riding was derailed, and caused her great injury, breaking one of her ribs; whereby she contracted pneumonia, and died about nine days after the injury. The defendant introduced testimony to rebut the fact proved by the plaintiff,-that the said Mrs. Rebecca Jones had contracted pneumonia as the result of the injury received by the accident,-they attempting to show that she had incipient pneumonia when the accident occurred, and that she would probably have died from the effects of the disease if she had never met with the accident. The plaintiff introduced evidence tending to show that the derailment of the coach was caused by a defective wheel, and that the defendant had been negligent in not having the wheels examined at Birmingham the station where this was generally done; but that it was neglected on this occasion, and hence the accident causing the injury to the plaintiff's intestate. The defendant introduced evidence for the purpose of rebutting this proof of the plaintiff. Upon this evidence the court charged the jury in writing, at the request of the plaintiff, as follows "That if they believed, from the evidence, that the plaintiff's intestate, Mrs. Jones, was injured through the negligence of the defendant, and that such injury caused her to take pneumonia, or aggravated the pneumonia from which she was then suffering, so that death resulted on that account, the plaintiff is entitled to recover, unless she would have died from pneumonia as an independent cause if she had not received the injury." The defendant excepted to the giving of this charge, and asked the following charges in writing, and excepted to the refusal of the court to give the same: "(1) If the jury believe, from the evidence, that, before the accident, the plaintiff's intestate was taking or had incipient pneumonia, and if the jury further believe, from the evidence, that the plaintiff's intestate died from such pneumonia, then the presumption is that the injury she received at the time of the accident did not cause the death of the plaintiff's intestate. (2) If the jury believe, from the evidence, that, before the accident, the plaintiff's intestate was taking or had incipient pneumonia, and if the jury further believe, from the evidence, that the plaintiff's intestate died from such pneumonia, then the jury is authorized from these facts, in connection with all the other facts in the case, to infer that the injury received at the time of the accident did not cause the death of the plaintiff's intestate. (3) That if the jury believe, from the evidence, that, if the plaintiff's intestate had been in ordinary health when the accident occurred, her injury would not have produced death, and that her death was the result of bad health at the time of the injury, then plaintiff cannot recover in this action. (4) That if the jury believe, from the evidence, that the train of the defendant was thrown from the track, not from a loose car-wheel, or from carelessness in the management of the car, train, or engine, while in motion, but from a low or sunken joint in the track, and that the train being thrown from the track, by said defect in the track, caused the injury complained of in the complaint, then they must return a verdict for the defendant. (5) If all the evidence in the case leaves it doubtful as to whether the death of the plaintiff's intestate was caused by the injury she received upon defendant's train, or from natural causes, then the jury must find for the defendant. (6) If the jury are in doubt, after weighing all the evidence in the case, as to whether the injury received by plaintiff's intestate, while upon defendant's train, caused her death, or whether she died from natural causes, then they must find for the defendant." The giving of the charge asked by the plaintiff, and the refusal to give the charges requested by the defendant, are assigned as error.

Hewitt, Walker & Porter, for appellant.

Smith & Lowe, for appellee.


The complaint in this case contains two counts. The gravamen of the first is that the defendant negligently permitted a wheel of the trucks, attacked to the coach in which the plaintiff's intestate was being carried as a passenger, to become and remain loose, by which said coach was thrown from the track, injuring her and causing her death. The second does not specify any particular omission of duty. Its averments are that "the defendant did not use due and proper care or skill in and about the carrying of the said Rebecca Jones on the said journey, but so negligently and unskillfully conducted itself in that behalf, and in conducting, managing, and directing the coach in which said Rebecca Jones was such passenger, *** and the engine whereby the said train was drawn upon and along the said railway, that the coach which contained the said Rebecca Jones was thrown and cast with great violence from and off the rails of the said railway," etc. There was no demurrer to either count, but issue was taken upon them. Two well-defined principles of law bear on the questions arising on the pleadings, and also must be kept in mind when we come to treat of the charges refused: First, in stating or averring matters which are, in their nature, more within the knowledge of the defendant than the plaintiff, less particularity is required; second, if injury is suffered at the hands of a common carrier, the law, in the absence of all explanation, presumes it was the result of the carrier's fault, and casts on the latter the burden of overturning the presumption, or of showing that diligence and a careful observance of duty could not have prevented the injury. Steph. Pl. 328, 329; Railroad Co. v. Bees, 82 Ala. 340, 2 South. Rep. 752; Leach v. Bush, 57 Ala. 145.

"Skill" and "care," in and about the carrying of a passenger on a railway, are not confined to the mere competency and watchfulness of the officers in charge of the train. Nor are these qualifications the only factors which enter into the inquiry whether or not the carrier conducted itself negligently or unskillfully in the particular service. The track, locomotive machinery, or the rolling stock may be unskillfully or negligently constructed, or may be negligently permitted to remain out of repair. If a railway corporation, in either of the conditions named, carry a passenger, and he suffers injury from defective structure, or failure to make proper repairs, this is negligence or unskillful conduct on the part of the corporation, and gives a right of action. And the defect of structure, or want of repairs, being much better understood by the corporation or person operating the road than by the person who suffers the injury, it need not be averred with more particularity than is found in the second count in this case. Leach v. Bush, 57 Ala. 145; Railroad Co. v. Carloss, 77 Ala. 443; Insurance Co. v. Moog, 78 Ala. 284.

Lest we be misunderstood, we will repeat here what we have heretofore said. Railroads are not required to adopt every new invention. It is sufficient if they conform to such machinery and appliances as are in ordinary use by well-regulated railroad companies. Railroad Co. v. Allen, 78 Ala. 494; Propst v. Railway Co., ante, 764.

Another principle of law bears on some of the rulings of the circuit court. Even if Mrs. Jones had pneumonia, or incipient pneumonia, at the time she received the injury, and it could be known that she would ultimately die of that disease, this would not necessarily, and as a matter of law,...

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