Northern Alabama Ry. Co. v. Shea

• Decision Date: 20 December 1904
• Citation: 142 Ala. 119,37 So. 796
• Parties: NORTHERN ALABAMA RY. CO. v. SHEA.
• Court: Alabama Supreme Court

37 So. 796

142 Ala. 119

NORTHERN ALABAMA RY. CO. v. SHEA.

Supreme Court of Alabama

December 20, 1904

Appeal from Circuit Court, Colbert County; Ed. B. Almon, Judge.

Action by R. E. Shea against the Northern Alabama Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The fifth, sixth, and eighth counts of the amended complaint (demurrers having been sustained to the other counts) contain the following averments: "(5) And plaintiff avers that his injuries resulted from the negligence of _______ Gould whose given name is unknown to the plaintiff, and who was the engineer in charge of the engine which was pulling a train of cars on the defendant's road, and said negligence consisted in this: the said engineer was running said engine and train of cars at a dangerous and reckless rate of speed so that some of the cars were derailed, and plaintiff was thrown from the top of a car and damaged as aforesaid. (6) And plaintiff avers that his injuries were caused by a defect in the track then and there used by the defendant, which defect consisted in this, to wit, the rails of the track were old and worn, the cross-ties rotten, rails insecurely fastened on the crossties; the track was insufficiently ballasted, so that on account of said defect some of the cars were derailed, and plaintiff was thrown from the top of a car and suffered damages as aforesaid. And plaintiff avers that said defect arose from, or had not been discovered or remedied owing to, the defendant's negligence, or the negligence of some person in the service of the defendant and intrusted by the defendant with the duty of seeing that said track was in proper condition; the name of said person being unknown to the plaintiff." "(8) And plaintiff avers that his injuries were caused by the negligence of one _______ Gould, whose given name is unknown to plaintiff, and who was an engineer, and who then and there had charge of the locomotive which was pulling the train of cars upon which plaintiff was engaged as brakeman, and said negligence consisted in this: the said engineer so negligently and carelessly managed his engine as to throw some of the cars which were being drawn by said engine from the track, whereby the plaintiff was thrown from the top of a car and injured and damaged as aforesaid." Defendant demurred to the fifth count on the grounds that: "(1) No facts are alleged showing that said alleged rate of speed was negligent, reckless, or dangerous. (2) The rate of speed is not alleged. (3) It is not shown or alleged how, or in what way, or by reason of what facts or circumstances said rate of speed was negligent, dangerous, or reckless." Defendant demurred to the sixth count on the grounds that: "(1) It is not shown thereby whether said alleged defect was due to the negligence of defendant or to the negligence of some particular employé of defendant. (2) It is not shown thereby what was the official position of said person intrusted by defendant with the duty of seeing that its track was in proper condition." Defendant demurred to the eighth count for the same reasons as are assigned to the fifth count, and also upon the following grounds: "(4) The facts constituting said alleged negligence are not stated with sufficient particularity. (5) It is not shown in what respect or in what way said engineer was negligent. (6) It is not shown that said engineer's name could not be ascertained by plaintiff by the use of reasonable diligence." The court overruled each of the foregoing demurrers, to which ruling the defendant excepted, and assigns same as error. Issue was joined on pleas of general issue and contributory negligence; in short, by consent. The testimony for the plaintiff showed that the train was running, at the time of the accident, from 15 to 20 miles per hour, that the grade was very steep, and that in the condition of the track 8 to 10 miles per hour would be a safe rate of speed. The section foreman, a section hand, a brakeman on the wrecked train, and the plaintiff testified that the rails were badly worn, that the ties were rotten and that the track needed ballasting. The section foreman testified that he had noticed the bad condition of the track several months before; that he endeavored to repair same with such material as was at his disposal, but that there was not sufficient material to repair same properly. The plaintiff asked this witness whether he would consider, from his experience as a railroad man, that the track was a safe one to which witness replied that he would not call it a safe track. To this question and the answer thereto defendant objected on the ground that it was merely the conclusion of the witness. The court overruled these objections, and defendant excepted. Plaintiff's counsel asked plaintiff "whether or not the rate of speed of 18 or 20 miles an hour at that point, with the train loaded as it was, was a dangerous rate of speed for the train to make," to which plaintiff replied that the train was going at a dangerous rate of speed. He was also asked by counsel, "Would fifteen miles an hour or twelve miles an hour have been a dangerous rate of speed at that time and place, loaded as the cars were?" to which plaintiff replied that it would. To these questions and the answers thereto defendant objected. The court overruled the objections, to which defendant excepted. The testimony for the defendant tended to show that the track was in fairly good condition, and the speed of train 8 to 10 miles an hour. The defendant requested the affirmative charge as to the whole complaint and each count thereof, and also the following special charges: "(21) If the jury believe from the evidence that the defects or defective condition of the track, if any existed at the time plaintiff became a brakeman for defendant, it was his duty to inform himself of them, and if he failed to do so he assumed the risks thereof." "(26) If you believe from the evidence that plaintiff is entitled to recover, you cannot award any damages on account of mental or physical suffering he has sustained since the injury." The court refused to give above charges, to which defendant separately excepted. There were verdict and judgment for plaintiff assessing his damages at $1,999. Defendant filed a motion for a new trial on the grounds that the verdict was excessive; the amount of same was not justified by the evidence as to the damages sustained; that it was not shown that plaintiff's injury was permanent; because, under the allegations of the complaint, plaintiff was not entitled to recover damages for mental and physical pain and suffering after the day of the injury and up to the time of the trial; because the verdict was contrary to the great weight of the evidence in this that the weight of the evidence did not show that the injury was caused by the defective condition of the track or by the negligence of the engineer. Said motion was...