Pollard v. Williams, 6 Div. 403.

Citation238 Ala. 391,191 So. 225
Decision Date15 June 1939
Docket Number6 Div. 403.
PartiesPOLLARD v. WILLIAMS.
CourtSupreme Court of Alabama

Rehearing Denied Oct. 12, 1939.

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Action by Bettie Giula Williams against H. D. Pollard, as receiver of Central of Georgia Railway Company, for damages for personal injuries sustained when train on which plaintiff was a passenger was derailed. From a judgment for plaintiff defendant appeals.

Affirmed.

W. H Sadler, Jr., and E. L. All, both of Birmingham, for appellant.

Taylor & Higgins, of Birmingham, for appellee.

BOULDIN Justice.

Action by passenger on a railway train for personal injuries sustained through derailment of the coach upon which she was a passenger.

The governing principles of law in such case have been frequently considered and applied in our decisions.

In Montgomery & Eufaula Railway Co. v. Mallette, 92 Ala. 209, 9 So. 363, 365, the law defining the degree of care and the presumption of negligence from the fact of derailment is thus stated:

"There was no error in the charges of the court to the effect that 'the law required 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.'

* * *

"The authorities present equal unanimity to the proposition that where a passenger receives injuries from the breaking down of the carrier's vehicle, from the derailment of a car, from collisions or the like,-- occurrences which ordinarily would not take place but for some negligence on the part of the carrier,--the prima facie presumption is that the injury was the result of the carrier's negligence; and in an action therefor, the plaintiff having shown that he was a passenger, and that he was injured by the derailment, for instance, of the car in which he was being transported, he is, upon this and without more, entitled to recover the damages thereby sustained, unless the defendant, in rebuttal of this prima facie presumption, reasonably satisfies the jury that the derailment was not due to any negligence, and could not have been prevented by the exercise of the highest degree of care, skill, and diligence on the part of the carrier.

* * *

"To rebut and overturn the presumption, the defendant must affirmatively satisfy the jury that it was not guilty of negligence as charged by the court; and this in no sense can be said to be done where the evidence is in such equipoise on the point as not to impress the minds of the jury one way or the other."

Many decisions are there cited. See, also, Alabama Great Southern R. R. Co. v. Hill, 93 Ala. 514, 9 So. 722, 30 Am.St.Rep. 65; Gadsden & Attalla Union Railway Company v. Causler, 97 Ala. 236, 12 So. 439; Southern Railway Co. v. Cunningham, 152 Ala. 147, 44 So. 658; Irwin v. L. & N. R. R. Co., 161 Ala. 489, 50 So. 62, 135 Am.St.Rep. 153, 18 Ann.Cas. 772; Alabama City, G. & A. Ry. Co. v. Sampley, 169 Ala. 372, 53 So. 142; Central of Georgia Railway Co. v. Robertson, 206 Ala. 578, 91 So. 470.

The carrier is not an insurer of the safety of passengers.

In the well considered case of Birmingham Ry. L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, 263, dealing with injury to a passenger while alighting from the train, it is pointed out that this higher degree of care is relative, means: "Though carriers of passengers are bound in respect of their duty to carry safely to exercise the highest degree of care, skill and diligence, and are liable for the slightest degree of negligence proximately resulting in injury, the term 'highest degree of care' is a relative one, and means the highest degree required by law in any case where human safety is at stake, and the highest degree known to the usage and practice of very careful, skillful, and diligent persons engaged in the same business by similar means or agencies, but does not mean that every 'possible or conceivable' act of care or precaution which might increase or even assure the safety of a passenger must be taken, only such as are reasonably practicable under the circumstances, that is, reasonably consistent with the practical operation of the carrier's business."

This principle was applied in a case of injury to a passenger in a motorbus by mud and gravel cast through the window at the driver's seat by a passing vehicle. Mosley v. Teche Lines, Inc., 232 Ala. 110, 166 So. 800.

In some cases, a mere administrative presumption is indulged on the ground that the facts are peculiarly within the knowledge of the defendant, as, for example, the presumption that an employee driving an automobile in course of his master's business, is presumed to be so using the car in case of injury to another in its operation, and the burden is on the owner to show the employee was not at the time operating the car in his master's business, but on a mission of his own. Tullis v. Blue, 216 Ala. 577, 114 So. 185.

The high degree of care required of a common carrier of passengers, the practical construction and maintenance of a railway track in such condition that the train will quite surely not leave the rails, destroying the railway properties as well as endangering human life, are to be considered in dealing with the presumption of negligence in case of derailment due to the condition of the track. The presumption of negligence in such cases, as disclosed by cases above quoted and cited, is more than a mere administrative presumption. The derailment by reason of the condition of the track raises a prima facie presumption of negligence, the failure to exercise the high degree of care due to passengers. Nevertheless, it is a rebuttable presumption. Notwithstanding the doctrine res ipsa loquitur applies in full force in this and other cases involving the safety of human life, if there be no evidence of negligence other than the fact of derailment, and it be clearly shown by consistent uncontradicted and unimpeached evidence that the derailment resulted from the wrongful and criminal act of some third person or persons in displacing a rail or otherwise causing the train to leave the track, the defendant is due an affirmative instruction with hypothesis. Such is the established rule in this jurisdiction. Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; Central of Georgia R. Co. v. Robertson, 203 Ala. 358, 83 So. 102; Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897.

In the absence of evidence disclosing danger of vandalism of this sort at the time and place, known to the carrier, he is not required to anticipate such criminal acts by third persons. Irwin v. L. & N. R. R. Co., supra; Tomme v. Pullman Co., 207 Ala. 511, 93 So. 462.

As a corollary to this rule such criminal conduct is not to be presumed. Few cases, if any, disclose a deeper moral depravity, than a wilful tampering with a railroad track with intent to derail a passenger train. Still, as appellant suggests, it is common knowledge that atrocious crimes are committed.

The main issue of fact in this case was whether the derailment of the train resulted from the criminal act of some third person or persons in removing or displacing a rail in the track, or from defects in the track due to a want of the high degree of skill, care and vigilance required by law in the matter of maintenance of a safe track.

The carrier, appellant here, insists there was error in refusing the affirmative charge with hypothesis.

The evidence touching the cause of derailment was circumstantial. The train was moving west. The derailment occurred at a point on and near the west end of a curve of some four degrees to the right. It was a dark night, December 18th. It was rainy weather. The train consisted of engine, tender, and five cars. When the engine was brought to an emergency stop, something more than 600 feet west of the point of derailment, it was discovered the wheels of the pony truck, the first to reach the point of derailment were off the rails to the right, the other wheels of the engine were still on the rails. All the wheels save those of the engine were off the rails to the right. The two rear coaches had swung across the track, torn out the right line of rails well night to the engine, gone off a high fill and overturned. This line of rails was much bent but held at the joints, save the receiving rail at the point of derailment. This rail was found after the wreck moved forward a short distance, the west end entirely detached and several feet off to the right of its place in the track. The east end was somewhat off to the right but still held to the discharging rail by bond wires, ductile wires connecting the two rails at the joint as a part of the electric signal system.

The structure of the joint where the derailment occurred, the condition and placement of the parts after the event, were matters on which much evidence was produced. The physical facts on this line are relied upon as conclusive evidence of vandalism.

A section off the west end of the receiving rail, a section off the east end of the receiving rail with bond wires attached, two angle bars, four bolts, three nuts and three nut locks, identified as parts of the joint in question, and in evidence before the jury, are sent up for our inspection. They have been carefully examined.

Quite conspicuous is a dent in the ball of the receiving rail at this joint. This dent is approximately one inch in width, extending from the inside line of the crown of the rail.

The witnesses, or several of them, speak of this dent as a flange mark. This implies that in some way the end of the receiving rail had gotten out of alignment with the discharging rail. If made by flanges of car wheels, this dent bears...

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