Tuck v. Louisville & Nashville Railroad , 98 Ala. 150 ( 1893 )

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 I. Wilkes, to recover damages for injuries sustained by his intestate, while in the employment of the defendant as a brakeman, resulting in his death. The complaint contains 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, entrusted 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 draw-head of the car, whereby it was left unfastened, insecure and unsafe. Tbe count is framed under sub-division one of section 2590 of tbe Code.

It is well settled by our decisions, tbat proof of eaclx and all of tbe following propositions is essential to tbe riglit of recovery under tbis count of tbe complaint. Eirst, tbe existence of a defect in tbe ways, works, machinery or plant connected with, or used in tbe business of defendant; second, tbat such defect arose from, or was not discovered or remedied, owing to tbe negligence of defendant, or of an employee charged with tbe duty of seeing tbat they were in proper condition; and third, that such defect was the proximate cause of tbe injury.—Mo. & Bir. R’wy Co. v. Holborn, 84 Ala. 133; Lou. & Nashville R. R. Co. v. Davis, 91 Ala. 487; 8 So. Rep. 552; M. & O. R. R. v. George, 94 Ala. 199. Unless there is evidence tending to prove all of tbe foregoing propositions, tbe court may properly charge the jury tbat tbe plaintiff is not entitled to recover under tbe first count. There is no conflict in tbe evidence.

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

As to tbe second proposition. Examination of tbe record discloses an entire want of evidence, having tendency to show tbat the defect, if any, arose from tbe negligence of defendant, or of any employee charged with tbe duty of seeing tbat tbe machinery was in proper condition, or was-not discovered or remedied because oh the negligence of defendant, or of sucb employee. In a case like the present, there is no presumption of negligence, and when there is no evidence having tendency to show it, no recovery can be had.—L. & N. R. R. Co. v. Davis, supra.

As to the third proposition : The evidence is, that when the signal for brakes was given, plaintiff’s intestate left the caboose, in which he was, went to the top of the cars for the purpose of putting on the brakes, and started towards the front part of the train; he was seen to pass over the car, and his lantern was seen near the middle of the train ; this was the last seen of him. Two brakes had been set on the first and second cars nest to 'the front car of the rear section. There was no brake on the front end of the front car of the rear section. When the train stopped at Elmore Station it was discovered that plaintiff’s intestate was missing, and search being made, his body was found a few hundred yards north of the station, so mutilated as to indicate it had been run over by the cars. No one saw him fall from the train, or testifies as to how the accident occurred. The bill of exceptions states : “The evidence introduced by plaintiff further tended to show that some of the clothing of plaintiff’s intestate was found on the brake-lever of the front car of the rear part of the train.” As it also states, “there were no brakes on the two ends of the cars at the place where the train parted,” — we understand that the brake on which the clothing was found', was at the rear end of the front car of the rear section. If this be so, plaintiff’s intestate must have fallen, or been thrown off by some means before reaching the place where the cars parted; consequently, the parting of the train could not have been the proxinjate cause of his injury.

Defendant introduced no testimony. A careful review and examination brings us to the conclusion that the injury was the result of an accident unexplainable, but for which defendant is not responsible, also, that the evidence is not of the character which calls for submission of any questions of fact to the jury. The evidence being free from conflict or doubt and not resting in inference, the court did not err in charging upon its effect, referring its credibility to the jury.

The second count charges that the injury was caused by the negligence of the car inspector or other person, to whom was entrusted superintendence of the cars and their safe condition. There is not a particle of evidence tending to show any fact material to plaintiff’s recovery under the second count.

This opinion was prepared by the late justice Clopton, and was adopted by the court.

Affirmed.