Southern Ry. Co. v. Lefan, 8 Div. 731

• Court: Supreme Court of Alabama
• Writing for the Court: MAYFIELD, J.
• Citation: 195 Ala. 295,70 So. 249
• Parties: SOUTHERN RY. CO. v. LEFAN.
• Decision Date: 30 June 1915
• Docket Number: 8 Div. 731

70 So. 249

195 Ala. 295

SOUTHERN RY. CO.
v.
LEFAN.

8 Div. 731

Supreme Court of Alabama

June 30, 1915

Rehearing Denied Dec. 2, 1915

Appeal from Circuit Court, Colbert County; C.P. Almon, Judge.

Action by W.O. Lefan against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Mayfield, J., dissenting in part.

Almon, Andrews & Peach, of Sheffield, and Stokely, Scrivner & Dominick, of Birmingham, for appellant.

Kirk, Carmichael & Rather, of Tuscumbia, for appellee. [70 So. 250]

MAYFIELD, J.

This action is by a servant against the master, to recover damages for personal injuries. The plaintiff was night switchman of the defendant railroad company. His place of work was in the railroad yards of the defendant company, at Sheffield, Ala. His duties were to aid in making up trains, and in switching and moving the cars about the yards.

On the night of the injury plaintiff was engaged in conveying cars from the upper parts of the yards down to the lower part known as the Hattie Furnace. It appears that there are numerous side tracks in these yards, leading off from the main track. These side tracks are connected to the main line by means of switches which, when turned properly, cause the cars traveling on the tracks to take the side tracks, or the main line, according to the setting of the switches.

The particular side track on or at which the accident happened is called the "Old Lady Track" or the "Lady Ensley Track." On the occasion in question, this particular track was used as a storage track for cars. It was the duty of plaintiff to line up the switches, so that the cars would take the proper track. On the occasion of his injury he was to line up the cars so that they would stay on the main track and not take the side track; and he says he so set the switches to that end. The plaintiff's position on the cars, when they were moving, was a standing position on the beam of the front car. He claims that after he had properly set the switches at the "Old Lady Track," and as the front car was passing over the switch or junction of the two tracks, the switch "threw around," that "something got the matter with it," and the moving car on which he was riding, instead of going along down the main line, turned off on the "Old Lady Track," and collided with stationary cars on this side line; and that plaintiff was caught between two of the cars and injured, having one of his legs mashed off.

The case was tried on two counts, both being under the first subdivision of the Employers' Liability Act (Act April 22, 1908, c. 149, § 1, 35 Stat. 65 [[[U.S.Comp.St. 1913, § 8657]). One count declared as for a defective switch; the other, as for a defective track near the switch. The case was tried on pleas of the general issue, and contributory negligence. The defendant contended that neither the switch nor the track was defective; but that the injury was proximately caused by the contributory negligence of the plaintiff, in failing to properly line up the switch in question.

On the trial the plaintiff proved by one W.L. Coffman that about a month before the accident he was riding on an engine in the yards in question, and that in passing over the switch in question he observed that it flew around, as the plaintiff testified it did on the occasion of the injury. The defendant objected to the questions calling for this testimony, and moved to exclude them, after the witness had answered, assigning a number of grounds. One particular ground was, that it was not shown nor attempted to be shown that the track or switch was in the same condition, when the witness observed it, that it was in when the plaintiff was injured. The court overruled the objections and motions to exclude, and the defendant excepted, here insisting that this action was error to revise.

If the track and switch were in the same condition, or practically so, on the two occasions in question, then the testimony of Coffman was admissible, otherwise it was not admissible. This seems to be the accepted rule in such cases. To allow such proof, it must first be shown that the conditions were substantially the same on the two occasions. It is not necessary that there be direct proof of the similarity of conditions. The occasions may be so near together as to afford the presumption that the conditions were similar, or the similarity may be shown by other circumstances; but the similarity of conditions must be made to appear before the evidence in question is admissible. This is a reasonable rule, for without it there would be no end to such evidence.

In the case of Birmingham Union Railway Co. v. Alexander, 93 Ala. 133, 9 So. 525, such evidence as to condition of tracks subsequent to injury was held admissible. In that case there was evidence to show similarity of conditions on the different occasions. That case was modified, however, in the later case of Birmingham v. Starr, 112 Ala. 98, 20 So. 424. In that case the question was as to the defective condition of a street or sidewalk, and the court said:

"The fact that other people may at different times have stumbled or fallen at the same place, was not competent to show either the character of the defect at the time plaintiff fell, or that she did not exercise ordinary care, or that such other persons had notice of the defect, or what care they used to avoid injury. It was a collateral inquiry and not involving knowledge or intent, does not come within the exception as to collateral facts. The evidence of the witness Murray was especially objectionable in that there was no evidence as to how long before the plaintiff was injured the facts occurred, nor whether the sidewalk was in the same condition. 1 Greenl.Ev. §§ 52, 448; Collins v Dorchester, 6 Cush. (Mass.) 397. If there is anything in the case of Birmingham Railway v. Alexander, 93 Ala 133 [9 So. 525], which expresses a contrary rule, it must be modified as herein declared."

This last case has been followed in two later cases, where the correct rule is stated. The decision of the court in

both cases is well stated in the headnotes thereto as follows:

"In a suit against a railroad company for damages for an injury caused by a train of the company at a point where the railroad crossed the public road, it was competent to prove, as tending to show that an unsafe condition of the crossing existed at the time of the accident, that the same condition had caused other accidents [70 So. 251] or difficulty; and for that purpose the experience of a witness with the same conditions at the crossing about three weeks before the accident in question was admissible in evidence.

"The prima facie incompetency of evidence at the time of its admission because of the failure to prove some fact necessary to its competency, may be removed by a subsequent examination of the witness touching the fact in question." Southern Railway Co. v. Posey, 124 Ala. 486 (headnotes 2 and 3), 26 So. 914.

"In an action against a municipal corporation to recover damages for personal injuries alleged to have been caused by a defect in the streets of the defendant, evidence that several days after the accident complained of, another person fell at the same place, is inadmissible and incompetent, in the absence of testimony showing the similarity of the condition of the defect at the subsequent date and at time of the injury complained of by plaintiff.

"In such an action, testimony as to the condition of the street some days subsequent to the date that the plaintiff was hurt, is inadmissible in the absence of all proof that such condition remained unchanged after the date of the injury." Davis v. Alexander City, 137 Ala. 206 (headnotes 2 and 3), 33 So. 863.

The correct rule is also well stated in a quotation in the case of Foley v. Pioneer Co., 144 Ala. 183, 40 So. 273, as follows:

"Evidence of conditions before and after the accident may be received where it is also shown that the conditions testified to remained unchanged down to the occurrence of the injuries or the time to which the evidence relates; *** so evidence is admissible of conditions existing so short a time before or after the accident as, under the circumstances, to warrant an inference of fact that the same conditions existed when the injuries were received." 21

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