Western Ry. of Alabama v. Walker

Decision Date25 June 1896
Citation113 Ala. 267,22 So. 182
CourtAlabama Supreme Court

Appeal from circuit court, Macon county; N. D. Denson, Judge.

Action by Mary E. Walker against the Western Railway of Alabama. Judgment for plaintiff, and defendant appeals. Reversed.

The first count of the complaint avers that the defendant so negligently ran and propelled a train as to run upon and against a car in which the plaintiff was a passenger, and thereby caused her injuries. The second count avers that the defendant so carelessly and negligently managed and controlled a certain train then operated by its servants and agents as to run the same upon and against the car in which she was a passenger, and to throw the same partially from the track. The third count avers that by reason of the negligence of the defendant she was violently thrown upon the floor of the car in which she was a passenger, and injured, as specifically averred therein. Each count of the complaint distinctly avers that the negligent act of the defendant caused her to be thrown upon the floor, and one of her legs to be broken, and the resultant injuries. To each count of the complaint the defendant filed two grounds of demurrer. The first ground was that the count did not show that its negligence caused, or proximately contributed to, the injury second, that they each aver conclusions, and not facts, and fail to show in what the alleged injury consists. To the first and second counts defendant filed an additional ground of demurrer. The ground was that the counts assumed that the mere running of one train of cars against another was negligence. These demurrers were overruled. Defendant then filed a number of pleas: (1) The general issue. (2) That the injury was the result of mere accident, and without its fault. (3) That the injury was the result of a risk which plaintiff incurred as a passenger, and arose from a casualty which human sagacity and the utmost care could not have guarded against. (4) That the train which injured the plaintiff was equipped with the most approved appliances for handling and stopping the same, operated by skilled and competent men, who were at their posts, carefully handling the same, and that owing to some latent defect in the air brake, which had not and could not be discovered or prevented by any known or practicable test, such brakes failed to work properly and stop the engine and train within the usual distance and time, although they were promptly and properly applied by those in charge, and that by reason of such failure, and without fault or negligence on the part of the defendant, the injury occurred. A demurrer to this plea was sustained, and thereupon defendant amended it by adding to it these words: "And defendant avers that those in charge of said engine and train promptly and properly used all means known to skillful engineers to stop the said engine and train, and to prevent the said collision, as alleged in the complaint." Then the plaintiff took issue on the plea. The fifth plea avers that the train had started on a trip from Atlanta, where it was properly inspected, and found to be equipped with the appliances of the character alleged in the preceding plea; that it was operated by a good and sufficient crew of skilled and competent men, who remained at their posts, and carefully handled the train at the time the collision occurred; that it made many stops on the trip including one at a station only three miles from where the accident occurred; that such appliances worked well, and stopped the train promptly and satisfactorily, and were in good and proper order; that between the last place of stopping and the place at which the accident occurred some unknown person, without its knowledge or consent, turned off the air in the tank of the engine to such an extent as to partially exhaust the air in the cylinders under the coaches and impairing the capacity of the appliances to stop the engine and train in the usual and customary time and distance; that after such interference the act could not, by proper diligence, have been discovered, and that by reason of such interference, and without fault or neglect on the part of the defendant, plaintiff received the injury complained of. This plea was also amended by adding to it the same words which were added to the fourth plea, upon a demurrer to the same being sustained in its original form. The sixth on the trial it was withdrawn, as there was no evidence to sustain it.

The testimony showed that the plaintiff became a passenger on a passenger train which left Montgomery the morning of the accident about 10 o'clock; that that train usually met another train from Atlanta at Mount Meigs station, about 15 miles from Montgomery, but, the Atlanta train being behind it was ordered to meet it at Cliatt's, 21 miles from Montgomery. The train went to Cliatt's, and the engine and several coaches were pulled on the side track, but for some reason, unexplained by the testimony, the coach in which the plaintiff was a passenger was left on the main track. While it was in this position it was run into by the train coming from Atlanta, partially throwing it off of the track and the plaintiff thrown violently down, and her leg broken at the hip joint. From this injury she was confined for many weeks to her bed, suffered intense pain, bodily and mentally and her leg permanently shortened, so as to make her unable to walk. The evidence as to whether the brakes upon the train from Atlanta were applied in proper time to have stopped that train, even had they worked properly, was conflicting; that on the part of the plaintiffs tending to show that no effort was made to apply them until they were within a very short distance of the car in which plaintiff was a passenger. The testimony further showed that it was a bright day, that the track was straight for about three-fourths of a mile in the direction of Atlanta, and that the crew on the Atlanta train could easily have seen that the car in which plaintiff was a passenger was on the main track that distance from it. It was also shown that the conductor on the train on which the plaintiff was a passenger saw that there would be a collision before the trains collided, and warned the passengers to get off; that some of them had time to do so; the plaintiff got up for that purpose, but before she could get off was thrown down as stated above.

The evidence for the defendant was to the effect that the track roadbed, cars, and locomotives of the defendant company were in first-class condition; that the machinery for controlling and stopping trains in use on defendant's trains, and particularly on the train which it is alleged collided with the car on which plaintiff was a passenger, from which collision she suffered the injury complained of, was of the most approved pattern, and such as was in use by the best-regulated railways; that the train was manned by a sufficient crew, composed of men of carefulness, skill, and diligence, fully competent to their respective duties, each of whom, on the occasion of the collision, was at his post of duty, faithfully performing his duty; that the said machinery had been fully inspected and tested by all the means known to skillful manufacturers, and that it was made of the best material, and properly constructed for the purposes for which it was intended; that the machinery and air brakes on said train had been carefully inspected by a competent official in Atlanta just before it started from that city; that said machinery was then in good order, and that it worked efficiently, and accomplished its purposes all along the route of the train until the time of the accident, and the train was readily controlled and stopped by the application of the air brakes at every station passed before reaching Cliatt's; that the engineer of the train began to use and apply the air brake to stop the train at the usual stopping place at that station about 400 yards from said point, and...

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3 cases
  • Alabama Consol. Coal & Iron Co. v. Heald
    • United States
    • Alabama Supreme Court
    • February 26, 1910
    ... ... these matters." 26 Am. & Eng. Ency. Law, 160; Snider ... v. Burks, 84 Ala. 57, 4 So. 225; Morton's Case, 79 ... Ala. 616; Herstein v. Walker, 85 Ala. 37, 4 So. 262 ... The ... court adheres to its former ruling upon the point sub judice ... We deem ... it ... 40, ... 58, 19 So. 37 ... The ... charges sub judice differentiate from those held good in ... Western Railway of Alabama v. Walker, 113 Ala. 267, ... 22 So. 182, in that the charges in that case, while they ... contain the terms, "without fault or ... ...
  • Birmingham Ry., Light & Power Co. v. Moore
    • United States
    • Alabama Supreme Court
    • January 30, 1906
    ... ... 1024 148 Ala. 115 BIRMINGHAM RY., LIGHT & POWER CO. v. MOORE. Supreme Court of Alabama January 30, 1906 ... On ... Rehearing, November 15, 1906 ... Appeal ... & N. R. R. Co. v. Anchors, 114 Ala. 492, 22 So. 279, 62 ... Am. St. Rep. 116; Western Ry. of Ala. v. Walker, 113 ... Ala. 267, 22 So. 182; L. & N. R. R. Co. v. Markee, ... 103 Ala ... ...
  • Scarborough v. Borders
    • United States
    • Alabama Supreme Court
    • May 27, 1897

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