Tuck v. Louisville & N.R. Co.

• Decision Date: 12 January 1893
• Court: Alabama Supreme Court
• Parties: TUCK v. LOUISVILLE & N. R. CO.

12 So. 168

98 Ala. 150

TUCK v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

January 12, 1893

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

Action by J. M. Tuck, administrator, against the Louisville &amp Nashville Railroad Company, to recover for death of plaintiff's intestate. Judgment for defendant. Plaintiff appeals. Affirmed.

Taliaferro & Houghton, for appellant.

Hewitt Walker & Porter, for appellee.

HEAD J.

The only assignment of error involves the propriety of the affirmative charge given at the request of defendant. Appellant sues, as administrator of Walter J. Wilkes, to recover damages for injuries sustained by his intestate while in the employment of defendant, as a brakeman, resulting in his death. The complaint contained two counts. The first charges that the injury was caused by a defect in one of the freight cars used on defendant's road, which arose from or had not been remedied owing to, the negligence of defendant or of the car-inspector, or of the person in the service of defendant intrusted with the duty of seeing that the car and its coupling apparatus were in proper condition. The alleged defect consisted in the absence or loss of the key to the tail bolt, which formed a part of the drawhead of the car, whereby it was left unfastened, insecure, and unsafe. The count is framed under subdivision 1 of section 2590^[1] of the Code. It is well settled by our decisions that proof of each and all of the following propositions is essential to the right of recovery under this count of the complaint: First, the existence of a defect in the ways, works, machinery, or plant connected with or used in the business of defendant; second, that such defect arose from, or was not discovered or remedied owing to, the negligence of defendant, or of an employe charged with the duty of seeing that they were in proper condition; and, third, that such defect was the proximate cause of the injury. Railway Co. v. Holborn, 84 Ala. 133, 4 South. Rep. 146; Railroad Co. v. Davis, 91 Ala. 487, 8 South. Rep. 552; Railroad Co. v. George, (Ala.) 10 South. Rep. 145. Unless there is evidence tending to prove all of the foregoing propositions, the court may properly charge the jury that the plaintiff is not entitled to recover under the first count. There is no conflict in the evidence.

As to the defect. The evidence shows that the train, which started at Birmingham, going towards Montgomery, while going down grade at a place known as "Elmore Hill," separated into two parts; and, when stopped at the station, it was discovered that the separation of the train was caused by the loss of the tail bolt. There is no testimony as to the condition of the bolt when the train started from Birmingham, or at any time before or after the accident, or tending to show a defect in the coupling appliances, except as inferable from the mere parting of the train. Between Birmingham and Elmore station, a distance of about 80 miles, the train had gone up grade at many places; and the evidence shows that if the key to the tail bolt was out of place the train would, of necessity, have parted while going up grade. The bill of exceptions states there was no evidence when or at what place the key of the tail bolt was lost. In the absence of such evidence the inference is that it got out of place just before the train parted. The evidence further shows that appliances of the same kind are used on well-regulated railroads, and that the keys often pull out, letting the trains part, on all railroads. These facts are inconsistent with any inference of a defect in the coupling appliances from the mere separation of the train.

As to...