Adams v. Crimm

ANDERSON, J. The .plaintiff; sought a recovery upon the theory that the “dinkey engine” upon which he was riding was derailed and injured him, and that the derailment was due to a defect in the track upon which said engine was running; the defendant’s theory being that the derailment of said engine was not due to a defect in the track, but to the manner in which the engine was being operated, or some cause other than a defective track. There Avas therefore a conflict in the evidence as to Avhether or not the track Avas out of repair at or near the point of derailment, and, this being the case, the trial court erred in permitting the plaintiff to prove that the defendant repaired the track at this point shortly after the accident.—Nash., Chat. R. R. v. Ragan, 167 Ala. 277, 52 South. 522, and cases cited; L. & N. R. R. Co. v. Malone, 109 Ala. 509, 20 South. 33. There was’no error in permitting the Avitness Jones to testify that he reported the condition of the track to the superintendent as this tended to establish negligence by showing a luiOAvledge by the defendant of the defect and a failure to repair. For the same reason, there was no error in overruling the objection to the testimony of the Avitness Curry as to the general condition of the track. There was no error in permitting the plaintiff to introduce the pieces of cross-ties in evidence. True, Avhole ties may have been better evidence of the condition of same, but the pieces afforded evidence for the jury as to the condition of the ties at the place of the accident. There was no error in not permitting the Avitness Gunn to testify that he had previous to the accident put in new ties Avhere needed. The testimony should have been confined to the point of derailment, and if new ties were put there before the accident, or Avere not [283] needed, lie could have so stated, and the proof should not have been made as' to a general repair of the track at other points. There was no error in giving charge 1 at the request of the plaintiff. There was evidence in support of every element of damages hypothesized, and the charge was postulated upon damages suffered as the “proximate result” of the injuries received in the wreck, and it did not possess the vice as pointed out in the charges in the cases of Birmingham R. R. Co. v. Moore, 2 Ala. App. 499, 56 South. 593, Birmingham R. R. Co. v. Moore, 163 Ala. 43, 50 South. 115, and Birmingham R. R. Co. v. Jones, 146 Ala. 277, 41 South. 146. There was error in giving charge 2 at the request of the plaintiff. It authorizes a finding for the plaintiff if the defect Avas the indirect or remote cause of the injury, AAdien it should have been the direct or proximate cause of same. — Authorities, supra. There was no error in refusing charges 4 and 5, requested by the defendant, as they were abstract and misleading. The undisputed evidence shows that Crim had gotten on the engine to repair same, and, whether he was actually hammering on it or not, he Avas in the discharge of his duty in and about repairing same, as averred in the complaint. He Avas having it moved or operated in order to detect the defect and ascertain Avhat was necessary to be done to same, and he Avas as much in the discharge of his duty in and about the repair of same as if he Avas actually taking the same to pieces or putting it together. The other charges complained of in the argument of counsel for appellant relate to contributory negligence or assumption of risk, issues foreign to the case, as the record discloses no special pleas and the judgment en [284] try shows that the case was tried solely upon the general issue. The judgment of the county court is reversed, and the cause is' remanded. Reversed and remanded. All the Justices concur.