Perdue v. Louisville & Nashville Railroad , 100 Ala. 535 ( 1893 )

HARALSON, J.

1. The second and third counts of tbe complaint, added by way of amendment, were demurred to, but no action appears to have been taken on tbe demurrers, and we must bold them to have been waived.

2. Tbe fourth and fifth counts were demurred to, on tbe ground, as to each, that plaintiff’s intestate was an employe of tbe defendant. Tbe demurrers were sustained. There was no merit in that objection to these counts, and tbe demurrers to them should have been overruled.

3. There was no conflict in tbe evidence. Tbe defendant did not examine a witness. It was shown there was a brake on tbe rear car; that while some of tbe brakes were out of order, there were several that were not; that there were four brakemen aboard, which was not shown to be less than tbe usual and necessary number; that tbe train consisted of sixteen cars, and was a freight train; was being run at a rate of 25 or 30 miles an hour,—not an unusual rate of speed for such a train at that point; that tbe road and track were good, and there was nothing to show that tbe things set up in tbe complaint as negligence, bad any causal connection with tbe injury tbe intestate received, any more than the ordinary operation of such a train, at any time, would contribute to such a disaster— Western R. R. Co. v. Mutch, 97 Ala. 194.

The death of intestate, so far as is shown, was the result of one of those unfortunate accidents, (which may have been caused by his own inadvertence or want of care, of which there is some evidence) which are incident to the operation of a railroad train, for which no one can be blamed, and his liability to which, every brakeman is presumed to know, when he enters upon the discharge of such a service.

4. Enough has already been said, to make it appear, that the questions propounded by plaintiff to the witness, Oliver, as to whether the train was heavily or lightly loaded, were, taken in connection with all the other evidence, irrelevant, and properly disallowed. As a matter of law, we have frequently held, it can not be said that any rate of speed of a railroad train, away from those places where the statute regulates it, is negligence per se. Whether or not rapid running, at points not regulated by statute, would be negligence, would depend upon the conditions under which it might be maintained.—E. T., V. & G. R. R. Co. v. Deavers, 79 Ala. 217; Western R. R. of Ala. v. Sistrunk, 85 Ala. 352; W. R. R. of Ala. v. Hembree, Ib. 483.

5. Nor was there any error in allowing defendant to ask the witness, if it was any part of his business to repair brakes, and if there was any place between Flomaton and Montgomery, where he could put the car in, to have them repaired. This was rebuttal of what the witness had stated on his direct examination—that intestate had told him after leaving Flomaton, that some of the brakes in the train were out of order. It was competent to show by him, that it was not a part of his duty to repair brakes, and if it was his duty to repair them, or have it done, it was competent to show that he could not do it at that time. And, again, it does not appear that the condition of the brakes had any thing to do with the casualty.

This disposes of all the assignments of error necessary to be noticed, and the judgment, for the erroneous ruling of the court on the demurrers to the 4th and 5th counts of the complaint, must be reversed.

Reversed and remanded.