Richmond & D.R. Co. v. Weems

• Decision Date: 10 January 1893
• Citation: 12 So. 186,97 Ala. 270
• Court: Alabama Supreme Court
• Parties: RICHMOND & D. R. CO. v. WEEMS.

12 So. 186

97 Ala. 270

RICHMOND & D. R. CO. v. WEEMS.

Supreme Court of Alabama

January 10, 1893

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by D. P. Weems against the Richmond & Danville Railroad Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint filed in this case contained but one count, and this count contained three distinct averments of negligence as causing the injuries complained of by the plaintiff. The first was that the said injuries were caused "by reason of defects in the condition of the ways, works, and machinery or plant connected with, or used in, said business of the defendant." The second averment in this behalf was that the "said injuries were also caused by reason of the negligence of the person or persons in the service or employment of the defendant, who then and there had the superintendence of said derrick and of plaintiff intrusted to him whilst in the exercise of such superintendence." The other allegation was that the "said injuries were also caused by reason of the negligence of a person in the service or employment of the defendant, to whose orders or direction plaintiff was then and there bound to conform, and did conform, and said injuries resulted from his having so conformed." The defendant demurred to this complaint and assigned, among other reasons, that there was only one count, but the plaintiff united in that one count several grounds of action, under section 2590 of the Code of 1886. The court overruled defendant's demurrer, and issue was thereupon joined upon the plea of the general issue, and upon the special plea of contributory negligence. On the trial of the cause the defendant introduced no testimony. The evidence for the plaintiff tended to show that while he was in the employ of the defendant, as a member of a crew who were constructing a culvert on the roadway of the defendant, and while erecting a derrick to be used therein, the accident happened; that the primary cause of the accident was the breaking of what was known as the "Gudgeon Pin." The main point of controversy was whether or not the gudgeon pin, the breaking of which caused the accident, was too small for the purposes for which it was then being used. The witnesses Sinclair and Clark testified as experts, after stating that they had had experience with derricks of this kind for a number of years, that in their opinion the gudgeon pin in the derrick used in this instance should not be smaller than 1 1/2 inches in diameter, and that it was dangerous to use on as small as 1 1/4 inches, as was done in this instance. The witness Kinney, who was defendant's foreman, and under whose superintendence plaintiff was working at the time of the accident, testified that he had had the gudgeon pin, which broke, made of steel, and that in his opinion it was large enough for the building derrick, as distinguished from the quarry derrick; and he had used pins no larger than this pin upon several railroads. It was also in evidence that the gudgeon pins used in derricks of this character were generally made of bar iron, instead of steel. After the testimony of the witnesses Sinclair and Clark the court, at the instance of the defendant's counsel excluded that portion of these witnesses' testimony which was to the effect that it was dangerous to use a gudgeon pin as small as the one used by the defendant in this instance but the court said that the "question will be allowed as to whether or not the pin would be liable to break." Upon the introduction of all the evidence, the court, in giving his oral charge to the jury, instructed them as follows:

"The plaintiff sues for injuries received while in the employment of the Richmond & Danville Railroad Company, the defendant. Now, gentlemen, the issues of this case are not many, or complicated, and the sole question that is controverted, the sole question that is left for your determination, is whether or not the Richmond & Danville Railroad Company, by its employes, was guilty of negligence in not having a larger pin in that derrick than was used. The fact that the accident happened, and that the plaintiff was injured, alone, would not entitle the plaintiff to a verdict,-would not entitle him to recover damages. There are dangers, more or less, in every department of life. We are never free from dangers of an accident of one kind or another, and when accidents happen that are pure accidents, and are not caused by the fault of anybody, then nobody is liable to pay the person who received the injury any damages for it, because it is one of those things that has come by virtue of the necessary relations that we all bear to each other in life, and because we can't all always take perfect precautions to prevent accidents. So, I say that the fact that the accident happened to the plaintiff while engaged in the service of the defendant would not, alone, entitle him to recover damages. Neither would that fact raise a presumption that the defendant was guilty of negligence,-guilty of doing something that it ought no to have done. It would not even raise that presumption. So, in order for the plaintiff to recover, he must show to you that he was injured, which fact is not controverted, while in the employ of the defendant, which also is not controverted, and he must go still further, and show that the injury was caused by the negligence of the defendant, or its servants, who had control and management or superintendence intrusted to them when this accident occurred to the plaintiff. He must establish all this first, and the burden of the proof is on him. The defendant does not have to say anything until the evidence establishes the fact that there was negligence on the part of the defendant.

"Now then, gentlemen, what is negligence? It is the business of an employer, whether a corporation or an individual, and I charge you that the rule is exactly the same with a corporation or an individual,-no more nor less liability on the one than on the other. Each are entitled to the full protection of the law, and each...