Montgomery & E. Ry. Co. v. Mallette

• Court: Supreme Court of Alabama
• Writing for the Court: MCCLELLAN, J.
• Citation: 92 Ala. 209,9 So. 363
• Parties: MONTGOMERY & E. RY. CO. v. MALLETTE.
• Decision Date: 05 May 1891

9 So. 363

92 Ala. 209

MONTGOMERY & E. RY. CO.
v.
MALLETTE.

Supreme Court of Alabama

May 5, 1891

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD, Judge.

This action was brought by C. P. Mallette against the railroad corporation, and sought to recover damages for in juries alleged to have been sustained and suffered by the plaintiff on account of the negligence of the defendant's servants and employes. The complaint in this case contained three counts. Each of them claimed damages for injuries sustained by the plaintiff while a passenger upon the railroad of defendant, and resulting from the negligence of the defendant, its servants or employes. The defendant pleaded the general issue, and a judgment was rendered for the plaintiff, assessing his damages at $4,000. The following facts were undisputed, as gathered from the bill of exceptions: That the plaintiff purchased a ticket at Albany, Ga., took the train running from that point to Montgomery over the Central Railroad of Georgia to Eufaula, and from thence over defendant's road to Montgomery, plaintiff's destination; that while he was on that train, and while the train was in the act of backing to the depot in Eufaula, the car in which plaintiff was riding turned over, and the plaintiff was injured; that the direct cause of the accident was that while the train was backing, as described, the sleeper, which was in the rear of the train at a switch-way, which it had to pass in order to get to the depot, ran off the track, and threw the car on which plaintiff was riding off the track, and it turned over that plaintiff had been injured by an accident at a saw-mill some time before, and that the wound he had there received had not healed up when this accident on defendant's road occurred, and the injury sustained by this last accident was that the former injury or wound was reopened by the last accident, and this caused permanent stiffness of the arm; that plaintiff did not have medical attention for his wound until he reached home that night, the accident having occurred about daybreak that morning; that at the suggestion of the railroad company he called upon a certain doctor in Eufaula in the morning, but that doctor was busy, and could not attend to him; but that the railroad company, through its agents, while the train was on the way from Eufaula to Montgomery, offered to procure medical aid for him, but he declined to receive it, and went on home down on the Montgomery & Mobile road, some miles below Montgomery, before he received any medical aid at all. There was testimony introduced by the defendant tending to show that the switch and all of the fixtures thereabouts were in good order, that the cars were all right, and that there was no known cause for the accident. The proof showed that the train was backing very slowly at the time the accident occurred. Bradford Dunham, an experienced railroad man, who was examined as a witness in behalf of the defendant, testified that in his opinion such an accident as the testimony showed this one was must have been occasioned either by the fact that the guard-rail was too wide, which showed that it was not in position, or by the fact that the car was binding on the truck so stiffly that it could not adjust itself. He also testified that, if the car was binding on the truck so as to cause such an accident as that, such an inspection as is ordinarily given to the cars would determine whether the particular car was down, if the examination was made by a competent person. During the examination of the witness Dr. Gaston, who was examined as an expert, and after he had testified that the stiffness of the arm might be removed by a very painful and somewhat dangerous operation, defendant's counsel asked him, "if it was his arm, if he would have the operation performed." Upon the objection of the plaintiff, the court refused to allow the question, and the defendant excepted. On the examination of one Robertson as a witness, he said that he went to the door of the coach in which Mallette was riding, after the car had turned over, to see if there were any passengers therein, and in a part of his testimony used these words: "I think they were all out before the car turned over." The plaintiff objected to this part of the testimony of said Robertson,-the part in quotations. The court sustained the objection thereto, and the defendant duly excepted.

In his general charge to the jury, which was in writing, the court, among other things, charged them as follows: "(1) If you are reasonably satisfied from the evidence that the plaintiff in some point in Georgia received and paid for a ticket as a passenger on the defendant's railroad to Montgomery, and was such passenger on defendant's train, and while on the route to Montgomery the train of cars, or some of the cars thereof, ran off the track, and plaintiff was injured thereby, then the plaintiff makes out a prima facie case for recovery, and he is entitled to recover, unless the defendant reasonably overcomes this prima facie right of recovery by the evidence in the case. (2) In order to avoid the liability growing out of a prima facie case made out by plaintiff, the defendant must reasonably satisfy the jury that it exercised that degree of care which the law requires of it in order to avoid and prevent the happening of accidents. (3) The law requires the highest degree of care and diligence and skill, by those engaged in the carriage of passengers by railroads, known to careful, diligent, and skillful persons engaged in such business. (4) If you find from the evidence that plaintiff, under the rule given, has made out a prima facie case, then defendant, in order to avoid liability, must reasonably satisfy the jury that it used that degree of care, diligence, and skill. (5) If the cause of the accident was the improper placement of the frog, or the guard-rail of the frog was improperly placed, or the body of the car had so come down and bore so heavily on the trucks as to prevent their acting or turning so as to keep the trucks, as they should have done, from remaining on the track; and you further believe that by the exercise of the degree of care, diligence, and skill above given...