Louisville & Nashville R. R. v. Lowe

DENSON, J. When a cause of action is based on subdivision 1 of the employer’s liability statute (Code 1896, § 1749; Code 1907, § 3910), in order to make a case of liability against the master, the plaintiff carries the burden of proving to the reasonable satisfaction of the jury, not only the existence of the alleged defect in the condition of the ways, Avorks, machinery, or plant connected Avith or used in the business of the master or employer, and that the defect Avas the proximate cause of the injury alleged, but also that the “defect arose from, or had not been discovered or remedied owing to, the negligence of the master or employer, . or of some person in'the service of the master or employer.”— L. & N. R. R. Co. v. Davis, 91 Ala. 487, 494, 8 South. 552; Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 147, 10 South. 87; Tuck v. L. & N. R. R. Co., 98 Ala. 150, 152, 12 South. 168; L. & N. R. R. Co. v. Binion, 98 Ala. 570, 574, 14 South. 619; L. & N. R. R. Co. v. Baker, 106 Ala. 624, 632, 17 South. 452; Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115, 126, 42 South. 96; Tutwiler, etc., Co. v. Farrington, 144 Ala. 157, 165, 39 South. 898; Dresser’s Employer’s Liability, p. 233, § 49; 2 Dresser’s Employer’s Liability, p. 96. The defect is alleged to have “consisted in a spike used to fasten the rail to the cross-tie on said railroad track at the point where the plaintiff was injured being loose and sticking up so as to catch plaintiff’s foot and throw him dOAvn.” [394] The only testimony disclosed by the record in respect to the defect is that of the plaintiff and his witness Fred. Jones. The plaintiff testified that lie-hung his foot under a spike that was in the cross-ties in hollow of the rail, and fell. “I did not see any spike at all. I judge, from the way my foot was caught, that it ivas a spike.” Jones testified that, about 10:30 a. m. of the day after the night plaintiff was injured, he examined the defendant’s railroad track where plaintiff got hurt, and saw there a 'spike pulled up and laid in the middle of the track, and some spikes that were out of the ties (two or three, he thought) around there, a little bit up out of the ties next the flange of the rail. “I did not see where the spike that was loose in the middle of the track came from, I just saw it lying there. I measured the spike that was sticking up with my finger, and from its head to the flange of the rail was the length of the second knuckle of my finger.” Assuming that the evidence sIioaved the defect, it is manifestly true that it falls short of shoAving, or of tending to sIioav, any negligence on the part of the defendant, or on that of its employes, in respect to its existence or to failure to discover it; and in this state of the proof the affirmative charge, requested in writing by the defendant, touching the first count of the complaint, should have been given. — Birmingham, etc., Co. v. Rockhold, 143 Ala. 115, 326, 42 South. 96; Kansas City, etc., Co. v. Webb, 97 Ala. 157, 162; United States, etc., Co. v. Weir, 96 Ala. 396, 402, 11 South. 436, and other authorities supra; Woodward Iron Co. v. Cook, 124 Ala. 349, 27 South. 455. The second count alleges that the negligence consisted in the failure of the engineer in charge or control of the locomotive of the train which plaintiff Avas endeavoring to flag “to keep a proper lookout.” There can be no doubt that under the first, as well as under this count. [395] the plaintiff should have been confined to proof of the negligence specified, and that he could not recover for negligence not specified. — Conrad v. Gray, 109 Ala. 130, 134, 19 South. 398; Prestwood v. McGowan, 148 Ala. 475, 41 South. 779. Under counts specifying the negligence of the defendant or of its servant, although the negligence specified may be shown to the reasonable satisfaction of the jury, yet, if the evidence should also reasonably satisfy the jury that the plaintiff was guilty of negligence in going on the track, or in attempting to mount the pilot of the engine, such negligence of the plaintiff should be held a contributing cause of plaintiff’s injury; and, being considered along with any antecedent negligence, alleged and proved, on the part of the defendant or of its employes, should bar recovery by plaintiff. Consequently, the negligence upon which the plaintiff relied to fix liability being specifically set out in the complaint here — any negligence on thé part of the defendant’s servant, occurring after discovering plaintiff’s peril, is not embraced in the count, and cannot af ford ground for a recovery; and this, notwithstandinj the contributory negligence of the plaintiff. Such subsequent negligence Avas outside of the issues. But if the complaint had charged negligence generally, without specifying any particular acts, it Avould have embraced such subsequent negligence, and it Avould have been within the provable issues made by the complaint. — Central of Georgia Ry. Co. v. Foshee, 125 Ala. 199, 27 South. 1006. On these considerations, the error involved in that part of the oral charge of the court excepted to is apparent. — Johnson v. Birmingham R. L. & P. Co., 149 Ala. 529, 43 South. 36. . There is no merit in the exception reserved to the ruling of the court on the admissibility of Jones’ testimony in respect to the conditions found by him at the point [396] on defendant’s track where the injury occurred. — Jackson Lumber Co. v. Cunningham, Adm’r, 141 Ala. 206, 37 South. 445. What has been said will afford a sufficient guide for the trial court, should the cause be again tried. Reversed and remanded. Tyson, C. J., and Haralson and Simpson, JJ., concur.