Pryor v. Louisville & N.R. Co.

• Decision Date: 19 June 1890
• Citation: 90 Ala. 32,8 So. 55
• Court: Alabama Supreme Court
• Parties: PRYOR v. LOUISVILLE & N. R. CO.

8 So. 55

90 Ala. 32

PRYOR v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

June 19, 1890

Appeal from city court of Birmingham; H. A. ShARPE, Judge.

Action for damages for personal injuries sustained by plaintiff alleged to have been caused by the negligence of defendant. The plaintiff was a brakeman, and after the cars had become detached, on account of the link in a coupling breaking, he was ordered by the conductor to couple the two detached portions of the train. In obedience to this order he went upon the track, and while attempting to make the coupling with his hand, by adjusting a link in the draw-head of one car, his foot became caught in a hole on the track between the cross-ties; and, while trying to extricate his foot, he fell forward across the track, and had his leg and foot so crushed by the moving cars that it had to be amputated. Upon the evidence the court charged the jury as follows: "If you believe the evidence in this case, you must find for the defendant." The plaintiff, after judgment for defendant appeals.

W D. Bulger, for appellant.

Hewitt, Walker & Porter, for appellee.

SOMERVILLE J.

The alleged defects in the ways and machinery of the defendant relied on in the complaint as grounds of culpable negligence, are two: (1) The defective link used in coupling the cars together, which broke and separated the two sections of the train; (2) the existence of a hole upon the track of the railroad, stepping into which by the plaintiff contributed to the accident. It is perfectly manifest from the evidence that the defect in the link, which resulted in its breaking, was not the proximate, but only the remote, cause of the plaintiff's injury. The complaint alleges the existence of a hole upon the railroad track, into which the plaintiff stepped, and was injured. The evidence, if we correctly interpret it, shows that the plaintiff was injured by getting his foot caught in between the cross-ties outside of the iron rails, and therefore off of the track proper, and fell forward on the track just as the cars came together. The point where the accident happened was near a depot called "Strassburg." As the company was not under the same rule of duty to keep in good repair the roadbed on the outside of the rails as on the inside, and between the rails, where the danger of collision with moving trains was more imminent, we incline to the opinion that there was a fatal variance between...