Louisville & N.R. Co. v. Sandlin

• Decision Date: 17 April 1900
• Citation: 125 Ala. 585,28 So. 40
• Parties: LOUISVILLE & N. R. CO. v. SANDLIN.
• Court: Alabama Supreme Court

28 So. 40

125 Ala. 585

LOUISVILLE & N. R. CO. v. SANDLIN.

Supreme Court of Alabama

April 17, 1900

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by William J. Sandlin against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint contains eight counts. The negligence averred is sufficiently stated in the opinion. There is no question raised on the pleadings.

It was shown that the wreck occurred at a curve along the line of the defendant's road, at which point all the cars of the passenger train except the last coach, ran off the track and turned over down an embankment, variously estimated at from 8 to 15 feet.

The evidence for the plaintiff tended to show that, at the time of the accident, the cross-ties at the curve where the wrecks occurred were rotten, and that said curve was rather sharp and there were no braces placed thereat. And there was also evidence tending to show that the rails at the curve were badly worn.

The evidence for the defendant was in conflict with that of the plaintiff, and tended to show that the cross-ties at the curve were not rotten, but were in good condition, and that the track was properly constructed in every respect. The other facts pertaining to the rulings of the trial court to which exceptions were reserved, are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give, among others, the following written charges: (1) "If the jury believe the evidence in this case they must find a verdict for the defendant." (2) "If the jury believe the evidence they must find a verdict for the defendant under the first count of the complaint." (7) "If the jury believe the evidence they must find a verdict for the defendant under the sixth count of the complaint." (9) "If the jury believe the evidence they must find a verdict for the defendant under the eighth count of the complaint."

There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Thos G. Jones, Chas. P. Jones, and Alex C. Birch, for appellant.

Lane &amp White, for appellee.

HARALSON J.

1. There were eight counts in the complaint averring negligence. The 1st, in the management of the train by defendant's employés; the 2d, for failure to have the roadbed in proper condition; the 3d, in failing to have the track in proper condition; the 4th, for having rotten or unsound cross-ties under the rails; the 5th, for failing to have the rails securely spiked or fastened to the cross-ties; the 6th, in so constructing the track, that the rails spread when the train ran onto them; 7th, in having worn or defective rails on the track, and the 8th, the negligent management of the train by defendant's employés. The defendant pleaded the general issue to each of these counts. On trial, the jury found a verdict for plaintiff and assessed the damages at $1,800, and judgment was rendered accordingly.

2. The 1st, 3d, 4th, 12th, 13th and 15th assignments of error question the correctness of the rulings of the court in allowing witnesses to state, that at the embankment where the wreck in which plaintiff is alleged to have been injured occurred, water was allowed to stand in the ditch alongside of the road,-which ditch was filled up and would not discharge water,-and in the borrow pits from which the earth was taken in the construction of the embankment on which the road was built. This is done on the alleged ground, that the complaint did not allege any negligence in allowing water to accumulate and stand by the side of the roadbed, and that evidence of these facts was, therefore, outside the issues on which the case was tried. The 2d count, however, charged negligence in failing to have the roadbed in proper condition at or near the place where the car on which plaintiff was riding was derailed; the 3d for failing to have the track in proper condition, and the 6th, that the track was so constructed, that when the train ran upon the same, the rails spread, thereby causing the derailment of the cars. The evidence for the plaintiff tended to show, that the cross-ties of the road on the embankment where the wreck occurred, were decayed and defective, so much so that the spikes which held the rails and track braces down to the ties, would become loose and work out; that there was at that point, as some witnesses expressed it, a pretty sharp curve in the road, and the embankment was built of a black, crawfish clay, which seeped water; that the ties, from frequent passage of trains, would spring up and down and the water would work out at the ends of the ties on each side, and they were not firmly set in the ground. If this water standing by and against the road embankment tended to seep and percolate into the embankment, thereby rendering it wet, causing the ties to decay, and the roadbed unsteady, and its rails and their fastenings insecure, as the evidence tended to show, such evidence was clearly competent as being within the issues. Skill and care, such as a railroad company should exercise in carrying passengers, are not confined to mere competency and watchfulness of the employés in charge of the train, but include the track and roadbed, for the proper quality and condition of which the company is responsible. Railroad Co. v. Jones, 83 Ala. 376, 3 So. 902; Railway Co. v. Alexander, 93 Ala. 133, 9 So. 525; Mayor, etc., v. Starr, 112 Ala. 98, 20 So. 424.

3. The witness McDougall's evidence (the basis of the...