Louisville & N.R. Co. v. Lowe

• Decision Date: 17 December 1908
• Citation: 48 So. 99,158 Ala. 391
• Parties: LOUISVILLE & N. R. CO. v. LOWE.
• Court: Alabama Supreme Court

48 So. 99

158 Ala. 391

LOUISVILLE & N. R. CO. v. LOWE.

Supreme Court of Alabama

December 17, 1908

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Edmund M. Lowe against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

The facts are sufficiently stated in the opinion of the court. The following portion of the court's oral charge was excepted to: "Now, the plaintiff, though he is guilty of negligence himself, is not necessarily precluded from recovery; because, even if he was guilty of negligence, if the engineer saw him and knew of his perilous position in time to prevent the injury, and failed to do it, still plaintiff would be entitled to recover, because the law says that the subsequent failure of an engineer to use the means at his command to prevent an injury would be the proximate cause, and not the other--the other being simply the creation of a condition upon which the negligence of the engineer operated." The first count was for defect in the ways works, plant, etc. The second count was for negligence in the failure of the person, in charge or control of the engine which plaintiff was attempting to flag, to keep a proper lookout. There was judgment for plaintiff in the sum of $4,000.

Tillman Grubb, Bradley & Morrow, for appellant.

White &amp Edwards, for appellee.

DENSON J.

When a cause of action is based on subdivision 1 of the employer's liability statute (Code 1896, § 1749; Code 1907, § 3910), in order to make a case of liability against the master, the plaintiff carries the burden of proving, to the reasonable satisfaction of the jury, not only the existence of the alleged defect in the condition of the ways works, machinery, or plant connected with or used in the business of the master or employer, and that the defect was the proximate cause of the injury alleged, but also that the "defect arose from, or had not been discovered or remedied owing to, the negligence of the master or employer, or of some person in the service of the master or employer." L. & N. R. R. Co. v. Davis, 91 Ala. 487, 494, 8 So. 552; Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 147, 10 So. 87; Tuck v. L. & N. R. R. Co., 98 Ala. 150, 152, 12 So. 168; L. & N. R. R. Co. v. Binion, 98 Ala. 570, 574, 14 So. 619; L. & N. R. R. Co. v. Baker, 106 Ala. 624, 632, 17 So. 452; Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115, 126, 42 So. 96; Tutwiler, etc., Co. v. Farrington, 144 Ala. 157, 165, 39 So. 898; Dresser's Employer's Liability, p. 233, § 49; 2 Dresser's Employer's Liability, p. 96. The defect is alleged to have "consisted in a spike used to fasten the rail to the cross-tie on said railroad track at the point where the plaintiff was injured being loose and sticking up so as to catch plaintiff's foot and throw him down."

The only testimony disclosed by the record in respect to the defect is that of the plaintiff and his witness Fred. Jones. The plaintiff testified that he hung his foot under a spike that was in the cross-ties in hollow of the rail, and fell. "I did not see any spike at all. I judge, from the way my foot was caught, that it was a spike." Jones testified that, about 10:30 a. m. of the day after the night plaintiff was injured, he examined the defendant's railroad track where plaintiff got hurt, and saw there a spike pulled up and laid in the middle of the track, and some spikes that were out of the ties (two or three, he thought) around there, a little bit up out of the ties next the flange of the rail. "I did not see where the spike that was loose in the middle of the track came from, I just saw it lying there. I measured the spike that was sticking up with my finger, and from its head to the flange of the rail was the length of the second knuckle of my finger." Assuming that the evidence showed the defect, it is manifestly true that it falls short of showing, or of tending to show, any negligence on the part of the defendant, or on that of its employés, in respect to its existence or to failure to discover it; and in this state of the proof the affirmative charge, requested in writing by the defendant,...