Louisville & N.R. Co. v. Binion

• Decision Date: 20 December 1894
• Citation: 18 So. 75,107 Ala. 645
• Parties: LOUISVILLE & N. R. CO. v. BINION.
• Court: Alabama Supreme Court

18 So. 75

107 Ala. 645

LOUISVILLE & N. R. CO. v. BINION.

Supreme Court of Alabama

December 20, 1894

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action by E. M. Binion against the Louisville & Nashville Railroad Company for personal injuries sustained by plaintiff while in defendant's employ as a brakeman. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

Most of the facts of the case, as shown on the present appeal, are sufficiently stated in the opinion. Against the objection and exception of the defendant, the plaintiff, as a witness in his own behalf, and other witnesses for the plaintiff, were allowed to testify to the pain and suffering of the plaintiff occasioned by the injury sustained. The court, in his general charge to the jury, instructed them as follows: "The measure of damages would be the loss of time which the plaintiff sustained, if you find that he is entitled to recover, and also the pain and suffering which he underwent by reason of this injury, and the permanent disability." The defendant duly excepted to so much of the general charge of the court as instructed the jury that they could assess damages for the pain and suffering of the plaintiff. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give of the charges as asked by it (1) "If the jury believe the evidence, they must find for the defendant." (2) "If the jury believe the evidence of Binion, the plaintiff in this case, they will find for the defendant." (3) "There is no evidence in this case which shows an improper inspection of the cars in the train on which plaintiff was injured." (4) "There is no evidence in this case which shows a negligent inspection at Mobile of the train on which plaintiff was injured." (5) "If the jury believe from the evidence, that the brake worked properly when applied by Binion, and that no one else handled it or touched the same, the fact that he fell or was thrown from said train is not proof of any defect in said brake." (6) "The court charges the jury, that proof that a car in the South &amp North Alabama Railroad at Montgomery had a limber brake staff did not prove that that was the car from which Binion fell." (7) "The plaintiff in this case can only recover compensation for the injuries sustained, and in estimating such compensation the jury cannot consider the pain and suffering which the plaintiff underwent." (8) "The plaintiff must show that his capacity for making a living has been diminished, and must furnish the evidence on which the jury are to calculate the amount of compensation to be allowed him." (9) "If the evidence shows that the capacity of plaintiff for earning a support has not been diminished by the injuries sustained, then the jury can only award nominal damages." There was a verdict in favor of plaintiff, assessing his damages as $5,000, and judgment accordingly. At a subsequent day of the term, the defendant moved the court to set aside the verdict and judgment and to grant a new trial on the following grounds: (1) The verdict was contrary to the law; (2) the verdict was contrary to the evidence; (3) the verdict was contrary to the charge of the court; (4) the court erred in refusing each of the charges requested by defendant; (5) the damages awarded by the verdict of the jury were excessive. The court overruled this motion, and the defendant duly excepted thereto. The present appeal is prosecuted by the defendant, who assigns as error the several rulings of the trial court to which exceptions were reversed.

Thos G. Jones and Chas. P. Jones, for appellant.

Watts &amp Troy, for appellee.

HARALSON J.

1. When this case was here before,-98 Ala. 576, 14 So. 619,-it was tried on a complaint which alleged, generally, that the plaintiff's injury was caused by a defect in the ways, works, machinery and brakes connected with and used on the train, on which the plaintiff was injured, and the special averments of defects were, in substance, that the dog, ratchet chain, rod, or shoes of the brake or brakes on said car, were defective or so worn as to be inoperative and insufficient for the purposes for which they were attached to the car; that the lever attached to the brake beam was broken or worn, so that when used, it failed to act properly, and that plaintiff, while engaged in and about his duties as brakeman and trying to perform the duties required of him, as such, was thrown from the top of said car, his right arm was cut off, and he was damaged thereby, etc. After reciting in the opinion, the testimony given to the jury which tended to prove the facts connected with the disaster, the court said: "It will been seen that there is an entire absence of proof of any defect in the brake, or in its working, which caused, or could have caused the brake to stick, or to be difficult to let off,-an entire absence of proof of any fact, attendant upon the release of the brake, which could have tended to throw plaintiff from the car. According to his testimony, he fell when the brake was released, but he proves no fact which connects his fall with the liberation of the brake. The inference from his entire testimony is just as reasonable, that the brake stuck from being put up too tight, or that he fell from losing his balance or footing, or that he was jerked off by retaining too long his hold on the wheel, when the brake was let off, or that his fall was caused by a defect in the machinery. There was no fact in the testimony which tended to solve this perplexing inquiry; and, the burden of proof being on plaintiff, it was his duty to furnish some proof of some fact, which tended to show the machinery was defective. We think he failed to do so." It was therefore held, that the defendant was entitled to the general charge.

2. On the return of the cause to the court below, the plaintiff was allowed to file an amended complaint, in which he alleged, that after having set up brakes as he was required to do, he was ordered by a signal from the engineer to let them off; that he attempted to do so, and one of the brakes, on top of the train, was defective by reason of having a limber brake staff, and that by reason of said defect in the said brake, when put on or applied, it became stuck, and it was dangerous to let it off; that plaintiff did not know that the brake was defective, but the defendant knew of, or could have discovered it by the use of ordinary diligence, which it negligently failed to exercise, before starting the train out; and that in attempting to let off the said brake with said limber staff, the plaintiff, without fault on his part, was thrown from said train, by reason of said defect in said brake, and was thrown between the cars, and his right arm was cut off, and the plaintiff suffered, thereby, great pain and suffering, and loss of time, to his damage of $10,000. There was no demurrer to this amendment, but a motion was submitted, to strike out that part of it, which sought a recovery on account of pain and suffering, which motion was overruled and the defendant excepted. It will be seen that this record presents a different case, on the pleadings from the one formerly before the court, and the proofs were also different, as we shall see.

3. The plaintiff introduced evidence tending to show, that the accident occurred at or near Bayou Sara near Mobile, on the night of February 7, 1890; that he had applied the brakes on his section of the train,-there being two other brakemen on the other sections,-to slow it up according to regulations in passing the draw of the bridge; that the engineer after passing the draw gave the signal to let off the brakes, and that in attempting to obey the order, he came to a car that was jumping and jerking; that he made two unsuccessful attempts to disengage the brake on this car, and the engineer blew to let off the brakes, a second time, and finally he set his lamp down, which to this time he had on his arm, and threw all his weight against it, and it threw him between the cars. To use his own language,-as he related the facts of the occurrence,-"he set the lantern down beside him, and tried with both hands, and threw his weight against it, and it came off; that the brake released or came off very suddenly; that there was a jerk, and it threw him off as quick as if you popped your fingers." He also stated that it was stuck, tightened up, became fast; that it struck him in such shape, that he fell in a whirl; that he did not fall off but was thrown or jerked off; that when he set up the brake, it set up like all the balance,-some four or five,-of them, and when he returned to it, the car was jumping or jerking, and it seemed to be a great deal tighter than when he left it, and that it was stuck up so tight, that when he released it, it threw him off; that he did not call for help to release the brake; he thought he could do it himself, and after the injury, and not before, he heard them speaking of having to get one or two men to help in releasing a stuck brake, but he never saw it done; that when he set up the brake he did not discover anything wrong about it; that he had only been braking since December, 1889-for about two months,-and before that, had no experience. There was on evidence that the company had ever given him any instructions about the use of the...