Louisville & N.R. Co. v. Jones

• Court: Supreme Court of Alabama
• Writing for the Court: STONE, C.J.
• Citation: 3 So. 902,83 Ala. 376
• Decision Date: 01 March 1888
• Parties: LOUISVILLE & N. R. CO. v. JONES.

3 So. 902

83 Ala. 376

LOUISVILLE & N. R. CO.
v.
JONES.

Supreme Court of Alabama

March 1, 1888

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. [3 So. 903]

Hewitt, Walker & Porter, for appellant.

Smith & Lowe, for appellee.

STONE, C.J.

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,...