Southern Ry. Co. v. Lefan
Decision Date | 30 June 1915 |
Docket Number | 8 Div. 731 |
Citation | 195 Ala. 295,70 So. 249 |
Parties | SOUTHERN RY. CO. v. LEFAN. |
Court | Alabama Supreme Court |
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.
Almon Andrews & Peach, of Sheffield, and Stokely, Scrivner & Dominick, of Birmingham, for appellant.
Kirk Carmichael & Rather, of Tuscumbia, for appellee.
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:
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:
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 A. & Eng.Ency.Law (2d Ed.) 517 and 518.
In the case at bar the evidence was in conflict as to the conditions remaining the same, or being similar, from the time the witness observed the defects up to the time of the accident. We are therefore of the opinion that the trial court did not err in allowing the plaintiff to prove by the witness Coffman, that he observed defects in the switch or track about a month before the accident.
There was, for like reasons, error in declining to allow the defendant to prove the condition of the track and switch subsequent to the accident, and that they were both used with perfect safety before and after the accident--it being shown, or the evidence tending to show, that the conditions were the same at the time of the accident, as afterwards, and that the track and switch had been subsequently used, continuously, and without similar accidents.
In the case of Birmingham Union Railway Co. v. Alexander, 93 Ala. 133, 136, 138, 9 So. 525, 526, this court announced the rules of evidence applicable to the questions involved on this appeal. It is there said:
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