Birmingham Traction Co. v. Reville

McOLELLAN, C. J. — We read the first count of the complaint to charge that /the want of a spring at the •switch or other appliance to hold the switch rail in posi [345] tion for tlie safe passage of cars was a defect in the ways or works of the defendant. It is further explicitly averred that this defect arose from or had not been remedied, owing to the negligence of the defendant, or some person in its employment “entrusted with the duty of seeing that a spring or other proper, appliance was used in •connection ■ with said switch so as to hold the switch point in its proper position.” And to the defect thus averred the injury to plaintiff is ascribed. On the case thus presented it is not for the court to determine as matter of law whether the want of such spring or appliance constituted a defect in the track or switch, but that Avas a,n issue of fact for the jury. The court properly •overruled the demurrer to this count. The demurrer to the seventh plea Avas properly sustained, or, at least, if there was technical error in that ruling it did not prejudice the defendant. Of course, if the SAvitch Avas defectively constructed, the fact that the city engineer thought otherwise and annroved it as being properly constructed would be no defense in this case. Tf the plea is to be taken as averring, in addition to the approval of the engineer, that the switch was a proper one and properly laid, this was matter covered by and redundant upon the general issue, and defendant had the full benefit of it under the plea of not guilty. It Avas pertinent to the issues presented by the sixth count to shoAv that the person to whom defendant had entrusted the duty of seeing that its ways were in proper condition knew that the track at the point of the derailment Avas out of gauge. In proving this it was competent to proAre not only that the attention of such person Avas called to the fact, but also Avhat he said in response to the statement made to’ him that the track was out of gauge, in so far, certainly, as that response evinced a consciousness on his part that he understood the statement and recognized the existence of the fact stated. Hence it is that at least a nart of what Baker said to Murnliv Avhen the latter called the former’s attention to the defect in the gauging of the track — that part Avhich tended to show that Baker was then conscious that he avus having the gauge made too close — was properly re [346] ceived in evidence. The court did not err, therefore, in overruling the motion to exclude what Baker said on that occasion though it be conceded that wha.t else he said, considered by itself, was impertinent. It may be that the use of a “loose tongue” switch on electric street railways without a spring or other appliance to hold it in a desired position is common and usual with well regulated roads of that class, and that ordinarily the use of such a switch without such a spring or other appliance in the track of such roads does not constitute a defect in the condition of such track; but when a loose tongue switch is so put into a track or is put in at such place and for such use that it is likely to cause derailment of cars attempting to pass unless it is provided with a spring or other proper appliance to hold the tongue out of the way of wheels notl intended to take the switch, and no spring is attached and no appliance is provided, or, if an appliance is provided, it is not adapted to and does not accomplish the purpose for which it is provided, the presence, structure and use of such a switch without a spring or other proper appliance does constitute a defect in the ways of the company. The switch here, it appears, Avas not one leading from one line onto another, or from a main line onto a branch road, but one going onto a mere siding. The degree to which or the frequency with which this siding was used does not appear; but it is clearly inferable from the evidence that cars Avere usually run by this place without going onto the siding at all, that the switch Avas supposed to be in a position to admit of this without manipulation by motormen as they approached it, and that a small piece of iron was provided there to be used in keeping the point of the SAvitch rail so far away from the adjacent- rail of the main track as that passage along the latter would not be interfered with by the switch rail or tongue. There was also evidence tending to show that this piece of iron was ineffective to so hold the SAvitch tongue, that it frequently got out of place, and that when out of place, the tongue was liable to and freauently did get over against the main rail so that Avheels of a ’pass [347] ing car would sheer off the main rail onto it when it was not intended or expected that they should or would. Indeed, the evidence tends to- show that when the small piece of iron was out of place, the switch tongue would be jarred by the forward trucks or wheels of a car in passing on the main line over against the main line rail so as to catch the wheels of the after truck, force them onto the switch rail while the forward trucks continued on the main rail, thus causing the car to “split the switch,” as the -witnesses express it, and necessarily produce derailment. This happened in a number of instances both before and after the occasion of plaintiff’s injury, and this precise thing happened! on the occasion of his injury, and caused that injury. On these tendencies of the evidence it was for the jury to say whether that switch was incorporated in defendant’s -wavs at that place for the uses to which it was there put without a spring or other appliance, or without proper and effective appliance to hold its tongue rail out of the way of the wheels of cars not intended to take it, ivas or ivas not a defect in the condition of defendant’s track at that point; and, if they so found, it was’for them to say further whether this defect was the proximate cause of plaintiff’s injuries. Hence our conclusion that the general charge requested by defendant on the first count of the complaint was correctly refused. There was also evidence in support of the sixth count of the complaint, evidence going to show that defendant’s track at the point of the derailment of the car and the injury to plaintiff was out of gauge and that this defect was the proximate canse of the injury. Upon these issues, too, the court properly declined to give the affirmative charge requested by the defendant. We do not find that the circuit court erred in overruling defendant’s! motion for a new trial. The verdict was sufficiently supported by the evidence to justify the conclusion of the court against setting it aside on the insistence of the defendant that the finding was contrarv to the evidence, etc.; and, in view of the averments and evidence of plaintiff’s pain and suffering, the permanency to a degree of his injuries, etc., we cannot see our way [348] to affirming that the circuit court erred in refusing to set the verdict aside on the ground of its alleged exces-siveness. Affirmed.